There's nothing civil about civil asset forfeiture, nor about the federal government's treatment of Robert Moser. During a search of Moser's house for evidence of marijuana cultivation, federal agents seized $28,000. The search was conducted without a warrant or Moser's consent, and Moser was not informed of his Miranda rights when the agents entered his house. A federal district court found that police had committed "serial constitutional violations... [that] were purposeful and flagrant," and ordered the government to return Moser's money. By prevailing against the federal government, Moser became entitled to an award of attorney's fees under the Civil Asset Forfeiture Reform Act (CAFRA).
But the district court didn't give Moser the award he sought. Why? Because among other things, his lawyer, Richard Barnett, supposedly gave the government's specious, unsupported arguments "more respect than they deserved." This Tuesday, the Ninth Circuit Court of Appeals roundly rejected the district court's reasoning, making plain that attorneys who take on forfeiture cases should not be penalized for zealous advocacy--or the government's intransigence.
Civil asset forfeiture allows law enforcement to take property from citizens, regardless of whether the property owner is guilty or innocent--and without even charging the owner with a crime. CAFRA provides that when a property owner "substantially prevails" in a federal civil forfeiture case, "the United States shall be liable for reasonable attorney fees." Moser asked for a fee award of $50,775, based on his lawyer's hourly rate of $500 and 101.55 hours of work. Instead, the trial court judge awarded a mere $14,000. The judge reasoned that forfeiture resembles criminal defense litigation and relied on the (seriously outdated) statutory rate of $125 per hour under the Criminal Justice Act (CJA). The judge then reduced the hours for which Moser's lawyer would be compensated by over forty percent, claiming that Barnett spent more time on the case than was necessary to defeat the government's often baseless arguments.
The district court's treatment of the fee request reads like a comedy of errors. Fortunately, a Ninth Circuit panel corrected them.
What did the district court get wrong? Writing for the Ninth Circuit panel, Judge Andrew Hurwitz found that the district court had "ignored" sworn declarations in support of Moser's fee request from several attorneys who were both knowledgeable about legal fees in the San Diego market and who specialized in forfeiture litigation themselves. Second, the district court elided crucial distinctions between CJA fees and those received under CAFRA, the most important being that CJA lawyers are always paid whereas attorneys who litigate forfeiture cases on a contingency basis receive no fee at all if their clients do not prevail. Thus, Judge Hurwitz reasoned, drawing upon CAFRA's legislative history, the district court's analogy to criminal defense work under the CJA "conflicts with CAFRA's purpose of facilitating adequate legal representation for forfeiture claimants," as it denies "economic reality"--i.e., that forfeiture specialists' hourly rates should be higher than rates for lawyers who are certain to be paid.
Finally, the Ninth Circuit emphatically rejected the notion that Moser's attorney should, in effect, be penalized for giving the government's litigation work "more respect than it deserved." In the first place, the district court failed to identify any particularly "over-respected" work that Moser's lawyer should not have wasted his time responding to. More fundamentally, Judge Hurwitz stressed, "When the government takes unsupported positions, an applicant is not unreasonable in responding forcefully." In a separate concurrence, Judge Stephen Reinhardt elaborated upon this latter point, noting that the government evidently thought that its arguments were entitled to respect and lawyers cannot afford to assume that judges will not respect the government's arguments. As Judge Reinhardt put it, "[F]requently an argument that one judge thinks is a clear loser, another may believe to be dispositive in the other direction. Properly advocating for one's client means being prepared to encounter either kind of judge."
The Ninth Circuit's probing, fact-sensitive judicial engagement in this area is most welcome. Contesting forfeitures frequently involves fighting the government for years and can often cost property owners more than the total value of the property taken. As a consequence, many seizures aren't even contested. The promise of recovering attorney's fees in winning cases encourages lawyers to represent poor clients who would otherwise lack any realistic opportunity of getting their property back and might not even bother trying. CAFRA's fee provisions serve as an incentive for skilled counsel to take on frequently complex cases that the government litigates aggressively, sometimes stretching the evidence to fit implausible narratives. Denying attorneys who prevail in forfeiture cases the full compensation they have earned not only does those attorneys an injustice but risks chilling their advocacy and even discouraging them from taking on forfeiture cases to case to begin with, to the detriment of future forfeiture victims.
At this point, it seems that the only Americans who are not outraged by the abuse of civil forfeiture are those who are unaware of it and those who stand to gain from it. Ultimately, protecting innocent property owners from overreaching law enforcement requires the abolition of civil forfeiture altogether. Until that occurs, judicial engagement is essential to ensuring innocent property owners get the legal assistance they need to force the government to play by the rules and give back what is rightfully theirs.