Forfeiture Generally.
When authorized by statute, a law enforcement agency may seize possession of property for the purpose of forfeiting a person's right to own or possess that property. Generally, civil asset forfeiture is permitted when the property itself is illegal, was used to facilitate a crime, is an actual proceed of a crime, or was purchased from proceeds traceable to criminal activity.
Civil asset forfeiture is permitted under a variety of statutes, including in the case of drug crimes, crimes committed with a firearm, and human sex trafficking and sexual exploitation crimes. The seizing agency must comply with specific statutory process requirements, which operate separately from a criminal proceeding. With the exception of the statute governing forfeiture in felony cases, these statutes do not require the property owner to be convicted of the alleged crime for the property to be forfeited.
Many of the statutes' procedures and requirements are similar, but not identical, to those found in the Uniform Controlled Substances Act (UCSA).
Uniform Controlled Substances Act.
Under the UCSA, a variety of property is subject to forfeiture, including controlled substances and anything used to manufacture or pay for them, proceeds traceable to the sale or exchange of controlled substances, conveyances used to facilitate distribution of controlled substances, and other personal property furnished in exchange for a controlled substance. Conveyances and other personal property may not be subject to forfeiture if the owner establishes that the act or omission occurred without his or her knowledge or consent. Real property used with the knowledge of the owner in connection with a crime, or which has been acquired in whole or in part with proceeds of a crime, is subject to forfeiture.
Seizure and Hearing Process. Upon seizure by a law enforcement agency, the agency must serve notice of seizure and possible forfeiture upon the owner within 15 days. If no person notifies the seizing agency in writing of a claim of ownership or right to possession within 45 days of service of notice in the case of personal property, and 90 days in the case of real property, the property is deemed forfeited by default.
A person who timely notifies the seizing agency in writing of a claim of ownership or right to possession is entitled to a hearing. The hearing is before the chief law enforcement officer of the seizing agency, or an administrative law judge if the seizure is by a state agency. The person asserting a claim or right may remove the matter to a court of competent jurisdiction. The burden of proof is on the law enforcement agency to establish by a preponderance of the evidence that the property is subject to forfeiture. Claimants who prevail are entitled to reasonable attorneys' fees.
Disposition of Forfeited Property. If property is forfeited, the seizing agency may sell, or retain for official use, anything not required by law to be destroyed. A seizing agency must remit to the state 10 percent of the net proceeds of any property forfeited during the preceding calendar year. Until June 30, 2027, the money must be deposited into the Behavioral Health Loan Repayment Program Account, and thereafter into the State General Fund. The remaining net proceeds are retained by the seizing agency exclusively for the expansion and improvement of controlled substances-related law enforcement, but must not supplant existing funding sources.
Recordkeeping Requirements. When property is forfeited, seizing agencies must keep, and retain for at least seven years, a record indicating: the identity of the prior owner; a description of the property; the disposition of the property; the value of the property at the time of seizure; and the amount of proceeds realized from disposition. Quarterly reports detailing the above must be filed by each seizing agency.
Service Members' Civil Relief Act.
The Washington Service Members' Civil Relief Act (SCRA) contains certain rights for service members and their dependents whose financial and legal obligations may be adversely impacted by active military duty. It applies to any judicial or administrative proceeding commenced in any court or agency in the state in which a service member or his or her dependent is a party. The SCRA also contains provisions restricting contract fines and penalties, restructuring interest rates on certain business loans, and tolling statutes of limitations during military service periods.
Forfeiture Generally.
A new chapter is created with respect to civil asset forfeiture proceedings. The entirety of the new chapter is applicable to seizures and forfeitures under statutes regarding the following:
Commencement of Forfeiture Proceedings.
Except with respect to contraband items, which must be seized and summarily forfeited, proceedings for forfeiture are deemed commenced by the seizure. Upon seizure by a law enforcement agency, the agency must serve notice of seizure and possible forfeiture upon the owner within 15 days. If no person notifies the seizing agency in writing of a claim of ownership or right to possession within 60 days of service of notice in the case of personal property, and 120 days in the case of real property, the property is deemed forfeited by default.
The Service Members' Civil Relief Act (SCRA) is applicable to civil asset proceedings.
Hearing Process.
A person who timely notifies the seizing agency in writing of a claim of ownership or right to possession is entitled to a hearing. The hearing is before the chief law enforcement officer of the seizing agency, or if the seizure is by a state agency, may alternatively be before an administrative law judge. The person asserting a claim or right may remove the matter to a court of competent jurisdiction. In all cases, the burden of proof is on the law enforcement agency to establish by a preponderance of the evidence that the property is subject to forfeiture. No personal or real property may be forfeited to the extent of the interest of an owner by reason of any act or omission committed or omitted without the owner's knowledge or consent.
Upon a determination by a court or hearing officer that the claimant is the present lawful owner or is lawfully entitled to possession, the seizing agency must promptly return seized items in the same or substantially similar condition as when they were seized. Claimants who prevail are entitled to reasonable attorneys' fees.
Disposition of Forfeited Property and Proceeds.
If property is forfeited, and after satisfaction of any victim restitution, the seizing agency may sell, retain for official use, request another entity to take custody of, or forward to an appropriate entity, anything not required by law to be destroyed. Forfeited property retained by the seizing agency must be used exclusively for the expansion and improvement of related enforcement activities, and may not be used to supplant preexisting funding sources.
By January 31 of each year, each seizing agency must remit to the State Treasurer (Treasurer) 10 percent of the proceeds of any property forfeited during the previous calendar year for deposit into the State General Fund, except that 10 percent of the net proceeds of any property forfeited based on a felony conviction or a second or subsequent impaired driving offense during the preceding calendar year must be deposited into the Behavioral Health Loan Repayment Program Account until June 30, 2027, and into the State General Fund thereafter.
Uniform Controlled Substances Act.
The UCSA is amended to:
Reporting Requirements Applicable to All Seizing Agencies.
General reporting requirements are included in the new chapter and made applicable to all seizures by seizing agencies, regardless of whether the seizure was made pursuant to the new chapter, other state statutes, or was conducted in collaboration with a federal agency under federal law. Seizing agencies must keep records about property seized and forfeited, including information regarding multiple specific data points such as date of seizure, type and value of property, whether the forfeiture was contested, and value of net proceeds retained. Seizing agencies must file with the Treasurer an annual report that includes these records and provide annual updates. If an agency has made no seizures during the previous year it must file a report to that effect. Seizing agencies must report information on expenditures from net proceeds to the Treasurer annually by March 1.
The Treasurer must establish and maintain a searchable public website that includes these records, as well information information regarding the expenditure of forfeiture proceeds, that includes:
One hundred and twenty days after the close of each fiscal year, the Treasurer must submit a report summarizing forfeiture activity in the state to the Speaker of the House of Representatives, the President of the Senate, the Attorney General, and the Governor. The aggregate report must be made available on the Treasurer's website. In the report, the Treasurer may include recommendations to improve statutes, rules, and policies to facilitate seizure, forfeiture, and expenditure processes and reporting that are fair to crime victims, innocent property owners, secured interest holders, citizens, law enforcement, and taxpayers.
An agency failing to file a report as required is first issued a written warning, and any subsequent delinquency is subject to a civil penalty payable to the State General Fund of $500 or the equivalent of one-quarter of the forfeiture proceeds received during the reporting period, whichever is greater. The data and reports are public information under the Public Records Act.
Application.
The act applies to seizures occurring on or after January 1, 2024.
The substitute bill specifies that "seizing agency" for purposes of reporting requirements does not include the state's child support agency. The substitute bill allows a port district operating an airport in a county with a population of more than one million to use net proceeds of forfeitures under the UCSA for the expanded purposes of substance abuse education, human trafficking interdiction, and responsible gun ownership.
(In support) This bill addresses forfeiture of property independent of a criminal prosecution. It provides standardization or procedures and rights that are currently governed by different standards under multiple statutes. These include standard procedures for notice, forfeiture proceedings, return of property wrongfully seized, and attorneys' fees for a prevailing claimant. In addition, it establishes reporting requirements for agencies that conduct forfeitures and a process for the Treasurer's Office to collect this information and provide it in a searchable public website. This enhanced reporting will provide a clearer picture of what is happening in Washington and whether it is being done fairly.
There is a concern that forfeiture laws are being used for profit, and a number of states have completely prohibited civil forfeiture except where there has been a conviction. That does not appear to be happening in Washington, so this bill takes a lighter approach by providing due process protections and more transparency in the process.
The Port of Seattle has forfeiture powers under federal and state law, and most of their seizures relate to persons transporting large amounts of cash to purchase illegal drugs. State law currently requires proceeds to be used only for purposes relating to controlled substances and addiction, but other sinister activities occur at port facilities, such as gun violations and human trafficking. The bill should be expanded to also allow use of proceeds for purposes relating to human trafficking interdiction and responsible gun ownership.
(Opposed) This bill reverses legislation enacted last year that ensured that the state doesn't profit from civil asset forfeiture. It will require the Treasurer's Office to build a data system and provide public reporting, which is a considerable change to the role of the office. There is no enforcement authority under the bill for the Treasurer's Office to take care of the civil penalties and the other requirements in the bill. The policy goals of the bill are justified, but the Treasurer's Office is not the right agency for this role.
(Other) The bill requires law enforcement agencies to invest time and resources to make public information public again. If agencies are required to engage in this enhanced reporting, they should be able to keep the 10 percent of proceeds sent to the state to cover these new costs. Language should be included to help law enforcement combat things like human trafficking and to further remove the profit motive from criminal activity. The requirement that restitution be paid first is impractical since forfeiture proceedings are resolved well in advance of any criminal charges. Requiring seized property to be held pending resolution of a criminal case puts an undue burden on a seizing agency.
Municipal courts should be given jurisdiction over these matters since municipal attorneys often handle civil forfeiture actions, and this would allow them to access their own courts and streamline the process. There are some concerns from cities about the language around innocent owners and where the burden of proof lies, and how they get their items back. The State Auditor's Office is doing a performance audit around civil asset forfeiture, which may come up with additional recommendations to improve the process.