Forfeiture Generally.
When authorized by statute, a law enforcement agency may seize 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 made 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.
The notice must include information indicating that if the property owner or other person claiming a right or interest in the property contests the forfeiture, the person has the right to move the matter to a court of competent jurisdiction, and if the person substantially prevails in a forfeiture proceeding, the person is entitled to reimbursement for reasonable attorneys' fees. Service of notice must be made according to the rules of civil procedure, except that service by mail must be by certified mail, return receipt requested.
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 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 10 percent of the proceeds of any property forfeited during the previous calendar year to the State Treasurer 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 Washington State Patrol (WSP) an annual report that includes these records. 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 WSP annually by March 1.
The WSP must establish and maintain a searchable public website that includes these records, as well as information regarding the expenditure of forfeiture proceeds, that includes:
One hundred and twenty days after the close of each fiscal year, the WSP 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. In the report, the WSP 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. The aggregate report must be made available on the Washington State Patrol's website.
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, 2026.
The substitute bill corrects inaccurate references to indicate that forfeiture reports must be available on the Washington State Patrol's website and that forfeiture proceeds are transmitted to the State Treasurer.
(In support) There is concern about the potential for people's property to be taken away from them without due process. This bill has been worked on for many years and has two main objectives: consistency and transparency. It consolidates the seizure and forfeiture process for many different statutes, providing consistency on who bears the burden of proof, the standard of proof, the timing of notice, and the awarding of attorneys' fees. The detailed reporting requirements will provide transparency by allowing for a better look at whether the process is working well, and if not, what changes may be necessary.
This bill will provide protections for innocent owners and require law enforcement agencies to file detailed forfeiture reports. These requirements are much needed in Washington, which currently has a civil asset forfeiture practice that is ranked among the lowest in the nation. There is a lack of data about how, when, where, and from whom property is taken by law enforcement agencies. What little data is available shows that seizures typically involve low value property and disproportionately impact certain racial and ethnic groups.
(Opposed) None.
(Other) Law enforcement agencies do not seize property for its value nor do they seize property for profit. There is agreement on the bulk of the bill, but some details still need to be addressed. The bill requires seizing agencies to first satisfy any restitution before they liquidate the asset. This is not practical because of timing issues as well as some cases where forfeiture actions are not related to criminal proceedings. The bill should allow for removal to a court of limited jurisdiction since many municipal attorneys handle civil forfeiture proceedings. There is disparity in the bill as to which courts may address DUI forfeiture issues at sentencing, and which may not. The bill should allow for the costs of storage and maintenance of seized property to be deducted from the net proceeds.
Transparency is a good thing, but law enforcement agencies are understaffed, and funding to support narcotics task forces has been reduced. Adding additional reporting and administrative tasks will cause an undue burden on already struggling agencies. Washington has strong public records laws, so this information is already available. The bill would require agencies to invest scarce public safety resources to do that work in advance. If additional support and funding is not provided, the reporting requirements should be removed.
(In support) Representative Roger Goodman, prime sponsor; and Alasdair Whitney, Institute for Justice.
The second substitute bill strikes the provision requiring seizing agencies to annually report information about seized and forfeited property and expenditures from net proceeds to the WSP and requiring the WSP to make the reports available on a searchable public website and issue an annual report summarizing forfeiture activity in the state. The second substitute bill strikes the section giving the WSP rulemaking authority.
(In support) There is concern about the potential for people's property to be taken away from them without due process. Washington's civil asset forfeiture practices are ranked among the worst in the nation. There is little data available showing how, where, and when property is seized that is easily accessible and publicly available.
(Opposed) None.
(Other) Law enforcement agencies do not seize property for its value nor do they seize property for profit. There is agreement on the bulk of the bill, but some details still need to be addressed. The bill requires seizing agencies to first satisfy any restitution before they liquidate the asset. This is not practical because of timing issues, as well as some cases where forfeiture actions are not related to criminal proceedings. The bill should allow for removal to a court of limited jurisdiction since many municipal attorneys handle civil forfeiture proceedings. There is disparity in the bill as to which courts may address DUI forfeiture issues at sentencing, and which may not. The bill should allow for the costs of storage and maintenance of seized property to be deducted from the net proceeds.
(In support) Alasdair Whitney, Institute for Justice.