Through civil forfeiture, the federal government can take ownership of property merely by proving it “guilty” by a preponderance of the evidence. The government need not formally accuse its owner of any crime. Yet the procedural mechanisms available to a property owner who wishes to contest a forfeiture are limited, complex, and strictly enforced. A creature of admiralty law, civil forfeiture draws on supplemental provisions of the Federal Rules of Civil Procedure with which many lawyers and federal judges are unfamiliar.
This Comment explores an active circuit split and identifies an undertheorized way for property owners to vindicate their rights: counterclaims against the government. Though the great majority of federal courts to address the question have summarily dismissed property owners’ counterclaims in civil forfeiture actions, those courts are mistaken. The civil forfeiture counterclaim finds strong support in the Civil Rules’ text, as well as in their historical context, purpose, and original public understanding. In the words of then-Judge Charles E. Clark, the principal drafter of the Civil Rules, courts should remove the “interpretative barnacles” that have made it unnecessarily difficult for property owners to defend themselves in civil forfeiture actions.
"Removing Interpretative Barnacles: Counterclaims and Civil Forfeiture,"
University of Chicago Law Review: Vol. 88:
4, Article 4.
Available at: https://chicagounbound.uchicago.edu/uclrev/vol88/iss4/4