Asset Forfeiture Process and Private Property Protection Act

Summary

Civil forfeiture laws represent one of the most serious assaults on private property rights in the nation today.  Under civil forfeiture, police and prosecutors can seize your car or other property, sell it and use the proceeds to fund agency budgets—often without so much as charging you with a crime. This Act protects individual liberty and property rights by standardizing forfeitures across all crimes, simplifying procedures, and addressing  counterproductive incentives in the law that distort policing priorities. Importantly, this model does not change the authority of law enforcement to seize property suspected of being associated with crime or limit in any way prosecutors’ ability to charge and prosecute suspected criminals.  Moreover, it ensures that those individuals proven guilty of a crime do not keep the fruits of their crime.  In doing so, it strikes the right balance between the individual property rights and public safety.

Asset Forfeiture Process and Private Property Protection Act

Model Policy

Section 1. {Title}

This act may be cited as the “Asset Forfeiture Process and Private Property Protection Act”

Section 2. {Definitions} As used in this Act:

(A)  “Abandoned property” means personal property left by an owner who intentionally relinquishes all rights to its control. Real property may not be abandoned.

(B) Actual knowledge” means direct and clear awareness of information, a fact, or a condition.

(C) “Contraband” means goods that are unlawful to import, export or possess.

(D) “Conveyance” means a device used for transportation and includes a motor vehicle, trailer, snowmobile, airplane, and vessel and any equipment attached to it.  The term does not include property that is stolen or taken in violation of the law.

(E) “Instrumentality” means property otherwise lawful to possess that is used in an offense.  An “instrumentality” includes a tool, a firearm, a conveyance, a computer, computer software, a telecommunications device, money, and other means of exchange.
(F) “Law enforcement agency” means any non-federal police force, or other local, county, or state agency that has the authority under state law to engage in seizure and forfeiture.

(G) A “law subject to forfeiture” is a State law that carries a felony penalty and that explicitly includes forfeiture as a punishment or sanction for the offense.

(H) “Proceeds” means money, securities, negotiable instruments or other means of exchange obtained by the sale of property.

Section 3. {Legislative Intent}.

(A) This Act intends to:

(1) deter criminal activity by reducing its economic incentives;

(2) increase the pecuniary loss from criminal activity; and

(3) protect against the wrongful forfeiture of property.

Section 4. {Exclusivity}

(A) This Act sets out the exclusive process governing forfeitures in the state of {insert state} and supersedes any conflicting provisions in law.

Section 5. {Criminal Asset Forfeiture}

(A) When a person is convicted of violating a law subject to forfeiture, the court, consistent with this Act, shall order the person to forfeit:

(1) proceeds and property the person derived directly from the commission of the crime;

(2) proceeds and property directly traceable to proceeds and property derived directly from the commission of the crime; and

(3) instrumentalities the person used in the commission of the crime.

Section 6. {Conviction Required; Standard of Proof}

(A) Property used in or derived from the violation of a law is subject to forfeiture only if

(1) the violation is of a law subject to forfeiture and

(2) the violation is established by proof of a criminal conviction.

(B) The State shall establish that seized property is forfeitable under section  (5) by clear and convincing evidence.

(C) Nothing herein prevents property from being forfeited by plea agreement approved by the presiding criminal court.

(D)  The court may waive of the conviction requirement if the prosecuting authority shows by clear and convincing evidence that the defendant (a) died, (b) was deported by the U.S. government, (c) is granted immunity in exchange for testifying or otherwise assisting a law enforcement investigation or prosecution, or (d) fled the jurisdiction after being arrested, charged with a crime that includes the forfeiture of property, and released on bail. Notwithstanding the prosecuting authority’s motion for a waiver, the property remains subject to claims by innocent owners, creditors and other third parties pursuant to this chapter.

Section 7. {No Civil Asset Forfeiture}

(A) There is no civil asset forfeiture.

Section 8. {Rule of lenity}

(A) The court shall resolve any ambiguity in this chapter relating to the State taking property through asset forfeiture in favor of the property owner.

Section 9. {Court-appointed Counsel}

(A) If a court determines that a person opposing forfeiture is financially unable to obtain representation by counsel, the court, at the request of the person, shall insure that the person is represented by an attorney at the State’s expense.  The attorney shall submit a statement of reasonable fees and costs to the court in a manner directed by the court.

Section 10. {Authorization to Use Forfeiture}

(A) Except for federal forfeitures consistent with section 39, forfeiture may occur only pursuant to an explicit grant of authority in State law.  An ordinance enacted by a county, municipality, or other unit of government authorizing forfeiture is not valid.

(B) A prosecutor having jurisdiction over a law subject to forfeiture has authority to pursue forfeiture.

Section 11. {Property Subject to Forfeiture; Contraband}

(A) Property subject to forfeiture is limited to:

(1) land, buildings, containers, conveyances, equipment, materials, products,

money, securities, and negotiable instruments; and

(2) ammunition, firearms, and ammunition-and-firearm accessories used in the furtherance or commission of, or obtained from the proceeds of, a violation of a law subject to forfeiture.

(B) No property right exists in contraband, including scheduled drugs without a valid prescription.  Contraband is subject to seizure and must be disposed of according to State law.  Contraband is not subject to forfeiture under this chapter.

Section 12. {Substitution of Assets for Unreachable Property}

(A) Upon the State’s motion following conviction, the court may order the forfeiture of substitute property owned fully by the defendant up to the value of unreachable property only if the State proves by a preponderance of the evidence that the defendant intentionally transferred, sold, or deposited property with a third party to avoid the court’s jurisdiction.

Section 13. {No Additional Remedies}

(A) Except as otherwise provided in this chapter, the State may not seek additional remedies including but not limited to personal money judgments.

Section 14. {No Joint-and-Several Liability; Pro Rata Forfeitures}

(A) A defendant is not jointly and severally liable for forfeiture awards owed by other defendants.

(B) When ownership is unclear, a court may order each defendant to forfeit property on a pro rata basis proportional to the proceeds that each defendant personally received.

 

PROCESS

Section 15. {Designating Property Subject to Forfeiture}

(A) Property subject to forfeiture may be identified by the State in an indictment of a grand jury or by information in the court in any related criminal proceeding in which a person with an interest in the property has been simultaneously charged with a violation of a law subject to forfeiture.

(B) If property subject to forfeiture is identified in (A), the indictment or information must specify the time and place of the violation, identify the property, and particularly describe its use in the commission of the crime or derivation from the commission of the crime.

(C) At any time prior to trial, the State, with the consent of the court and any defendant with an interest in the property, may file an ancillary charge alleging that property is subject to forfeiture.

Section 16. {Seizure of Personal Property with Process}

(A) At the request of the State, a court may issue an ex parte preliminary order to seize or secure personal property for which forfeiture is sought and to provide for its custody.  Application, issuance, execution, and return are subject to State law.

Section 17. {Seizure of Personal Property without Process}

(A) Personal property subject to forfeiture may be seized without a court order if:

(1) the seizure is incident to a lawful arrest or a lawful search;

(2) the personal property subject to seizure has been the subject of a prior judgment in favor of the State; or

(3) the State has probable cause to believe that the delay occasioned by the necessity to obtain process would result in the removal or destruction of the personal property and that the property is forfeitable under section 5.

Section A._{Seizure of Real Property with Process}.

(A) Seizure of real property requires a court order. A court may issue an order to seize or secure real property for which forfeiture is sought only after proper notice to property owners and an opportunity for a contested hearing to determine the sufficiency of probable cause for the seizure.

(B) Nothing in this section prohibits the prosecuting authority from seeking a lis pendens or restraining order to hinder the sale or destruction of the real property.

(C) Application, issuance, execution, and return of any order are subject to state law.

 

Section B. {Seizure of U.S. Currency or Equivalents}

(A) Mere presence or possession of U.S. currency, prepaid debit credit card or alternative forms of U.S. currency, without other indicia, is insufficient probable cause for seizure.

Section 18. {Receipt for Seized Property}

(A) When property is seized, the law enforcement officer shall give an itemized receipt to the person in possession of the property; or in the absence of any person, leave a receipt in the place where the property was found, if reasonably possible.

Section C {Forfeiture Charge}

(A) Within 30 days of the seizure of property or, if less, simultaneously upon filing a related criminal charge, the state shall file a forfeiture charge that shall include:

(1) a description of the property seized;

(2) the date and place of seizure of the property;

(3) the name and address of the law enforcement agency making the seizure;

(4) the specific statutory and factual grounds for the seizure;

(5) whether the property was seized pursuant to an order of seizure, and if the property was seized without an order of seizure, an affidavit from a law enforcement officer stating the legal and factual grounds why an order of seizure was not required; and

(6) the names of persons known to the state who may claim an interest in the property and the basis for each person’s alleged interest.

(B) The charging document shall be served upon the person from whom the property was seized, the person’s attorney of record and all persons known or reasonably believed to claim an interest in the property.

Section 19. {Title}

(A) At the time of seizure or entry of a restraining order, the State acquires provisional title to the seized property.  Provisional title authorizes the State to hold and protect the property.

(B) Title to the property vests with the State when the trier of fact renders a final forfeiture verdict and relates back to the time when the State acquired provisional title.  However, this title is subject to claims by third parties adjudicated under this chapter.

Section 20. {Storage}

(A) When property is seized, the State shall use reasonable diligence to secure the property and prevent waste.

Section 21. {Records}

(A) A State entity having custody of seized property that is subject to forfeiture shall maintain the following records:

(1) the exact kinds, quantities, and forms of the property;

(2) the date and from whom it received the property;

(3) the violation of law that subjected the property to seizure;

(4) the liens against the seized property;

(5) the make, model, and serial number of each seized firearm;

(6) to whom and when the notice of forfeiture was given;

(7) to whom it delivered the property; and

(8) the date and manner of destruction or disposition of the property.

(B) The records required under paragraph (A) are subject to the State’s freedom of information act.

Section 22. {Bond by Owner for Possession}

(A) If the owner of property that has been seized seeks its possession before the criminal trial, the owner may post bond or give substitute property in an amount equal to the fair market value of the seized property at the time the bond amount is determined.

(B) On the posting of bond or the giving of substitute property, the State shall return the seized property to the owner within a reasonable period of time not to exceed 3 business days.  The forfeiture action may then proceed against the bond or substitute property as if it were the seized property.

(C) This section does not apply to property reasonably held for investigatory purposes.

Section 23. {Petition for Remission or Mitigation}

(A) Prior to the entry of a court’s order disposing of the forfeiture action, any person who has an interest in seized property may file with the state’s attorney general a petition for remission or mitigation of the forfeiture.  The attorney general shall remit or mitigate the forfeiture upon terms and conditions the attorney general deems reasonable if the attorney general finds that:

(1) the petitioner did not intend to violate the law or

(2) extenuating circumstances justify the remission or mitigation of the

forfeiture.

Section 24. {Pretrial Replevin Hearing}

(A) Following the seizure of property under this chapter, a defendant or third-party has a right to a pretrial hearing to determine the validity of the seizure.

(B) The claimant may claim at any time prior to 60 days before trial of the related criminal violation the right to possession of property by motion to the court to issue a writ of replevin.

(C) The claimant shall file a motion establishing the validity of the alleged right, title, or interest in the property.

(D) The court shall hear the motion no more than 30 days after the motion is filed.

(E) The State shall file an answer showing probable cause for the seizure, or cross-motions at least 10 days before the hearing.

(F) The court shall grant the motion if it finds that (1) it is likely the final judgment will be that the State must return the property to the claimant or (2) the property is the only reasonable means for a defendant to pay for legal representation in the forfeiture or criminal proceeding.

(G) In lieu of ordering the issuance of the writ, the court may order the State to give security for satisfaction of any judgment, including damages, that may be rendered in the action, or order other relief as may be just.

Section 25. {Discovery}

(A) Discovery is subject to the rules of criminal procedure.

Section 26. {Right to Trial by Jury}

(A) Any party to a forfeiture action has a right to trial by jury.

Section 27. {Trial Proceedings}

(A) A trial related to the forfeiture of property must be held in a single proceeding together with the trial of the related alleged crime unless the defendant moves to bifurcate the trial.

(B) The court, upon motion of a defendant, shall separate the trial of the criminal matter against the defendant from the matter related to the forfeiture of property.

(C) The court, upon motion of a defendant, shall allow a defendant to waive the right to trial by jury related to the forfeiture of property while preserving the right to trial by jury of any crime alleged.

(D) If the court bifurcates the jury trial, the court shall first instruct and submit to the jury the issue of the guilt or innocence of the defendant to be determined by proof beyond a reasonable doubt and shall restrict argument of counsel to those issues.

(E) If the court bifurcates the jury trial, each party may introduce evidence in the forfeiture phase that was not introduced in the criminal phase.

(F) If the jury finds a defendant guilty of the related criminal offense and the defendant did not waive the right to trial by jury related to the forfeiture, the court shall instruct and submit to the jury the issue of the forfeiture.  The court may use interrogatories to address the forfeiture issue.

Section 28. {Proportionality}

(A) Following determination by the trier of fact, the owner may petition the court to determine whether the forfeiture is unconstitutionally excessive under the State or U.S. constitution.

(B) The owner has the burden of establishing that the forfeiture is grossly disproportional to the seriousness of the offense by a preponderance of the evidence at a hearing conducted by the court without a jury.

(C) In determining whether the forfeiture of an instrumentality is constitutionally excessive, the court shall consider all relevant factors, including, but not limited to:

(1) the seriousness of the offense and its impact on the community, including the duration of the activity and the harm caused by the person whose property is subject to forfeiture;

(2) the extent to which the person whose property is subject to forfeiture participated in the offense;

(3) the extent to which the property was used in committing the offense;

(4) the sentence imposed for committing the crime subject to forfeiture; and

(5) whether the offense was completed or attempted.

(D) In determining the value of the instrumentality subject to forfeiture, the court shall consider relevant factors, including, but not limited to:

(1) the fair market value of the property;

(2) the value of the property to the person whose property is subject to forfeiture including hardship to the owner if the forfeiture is realized; and

(3) the hardship from the loss of a motor vehicle or other property to family members or others if the property is forfeited assets.

(e) The court may not consider the value of the instrumentality to the State in determining whether the forfeiture of an instrumentality is constitutionally excessive.

THIRD-PARTY INTERESTS

Section 29. {Secured Interest}

(A) A bona fide security interest is not subject to forfeiture unless the person claiming a security interest had actual knowledge that the property was subject to forfeiture at the time of the property was seized or restrained under this chapter.

(B) A person claiming a security interest bears the burden of establishing that the validity of the interest by a preponderance of the evidence.

(C) The prosecuting authority shall summarily return to the person with a bona fide security interest.

(D) If the person alleges a valid security interest but the state seeks to proceed with the forfeiture against the property, the state shall prove by a preponderance of the evidence that the person had actual knowledge of the underlying crime giving rise to the forfeiture

Section 30. {Ancillary Hearing of Third-Party Interests}

(A) A person not charged in the indictment or information but who has an interest in property subject to forfeiture may not intervene after the criminal trial has begun.

(B) Following the entry of a verdict of forfeiture of property pursuant to this chapter or the entry of a guilty plea in court on the record, the State shall exercise reasonable diligence to identify persons with a potential interest in the property and make reasonable efforts to give notice to potential claimants.  The State shall provide written notice of its intent to dispose of the property to any person known or alleged to have an interest in the property exempted from forfeiture under this chapter, including any person potentially making claims for

(1) court-ordered child support,

(2) employment-related compensation or

(3) payment of unsecured debts.  The notice must also be made by publication in a

reasonable geographic area.

(C) A person other than the defendant asserting a legal interest in the property, within 60 days of the date of the notice, may petition the court for a hearing to adjudicate the validity of the alleged interest in the property.  The request for the hearing must be signed by the petitioner under penalty of perjury and state the nature and extent of the petitioner’s right, title, or interest in the property; the time and circumstances of the petitioner’s acquisition of the right, title, or interest; and any additional facts supporting the petitioner’s claim and the relief sought.

(D) Upon the filing of a petition, the court shall schedule the hearing as soon as practicable but in no event later than 6 months after the sentencing of any defendant convicted upon the same indictment.  The court shall issue or amend a final order of forfeiture in accordance with its determination if, after the hearing, the court determines that:

(1) the petitioner has a legal right, title, or interest in the property, and such right, title or interest renders the order of forfeiture invalid in whole or in part because the right, title or interest was vested in the petitioner rather the defendant or was superior to any right, title or interest of the defendant at the time of the property was seized or restrained under this chapter; or

(2) the petitioner is a bona fide purchaser for value of the right, title, or interest in the property and was at the time of purchase without cause to believe that the property was subject to forfeiture under this chapter.  The State has the burden of proof with respect to the issue of whether the petitioner was without cause to believe that the property was subject to forfeiture at the time of purchase or other acquisition of value.

(E) A qualified indigent who wishes to contest the forfeiture of property and appears to have an exempt interest has a right to court-appointed counsel as provided in section 9. In addition, the court shall waive the person’s court fees.

Section 31. {Innocent Owner}

(A) The property of an innocent owner may not be forfeited under any forfeiture statute.  The process for determining whether a person is an innocent owner is set out in this section.

(B) A person who has an ownership interest in property subject to forfeiture existing at the time the illegal conduct giving rise to forfeiture occurred and who claims to be an innocent owner bears the burden of proving by clear and convincing evidence that the person has a legal right, title, or interest in the property seized under this chapter.

(C) If paragraph (B) is satisfied and the state seeks to proceed with the forfeiture against the property, the state shall prove by clear and convincing evidence that the person had actual or constructive knowledge of the underlying crime giving rise to the forfeiture.

(D) A person who acquired an ownership interest in property subject to forfeiture after the commission of a crime giving rise to the forfeiture and who claims to be an innocent owner bears the burden of proving by clear and convincing evidence that the person has legal right, title, or interest in the property seized under this chapter.

(E) If paragraph (D) is satisfied and the state seeks to proceed with the forfeiture against the property, the state shall prove by clear and convincing evidence that at the time the person acquired the property the person:

(1) had actual or constructive knowledge that the property was subject to forfeiture; or

(2) was not a bona fide purchaser without notice of any defect in title and for valuable consideration.

(F) If the state fails to meet its burden in paragraph (C) or (E), the court shall find that the person is an innocent owner and shall order the state to relinquish all claims of title to the property.

(G) The defendant or convicted offender may invoke the right against self-incrimination or the marital privilege during the forfeiture-related stage of the prosecution. The trier of fact at the hearing may draw an adverse inference from the invocation of the right or privilege.

Section D. Appeal.

A party to forfeiture litigation may appeal the district court’s decision regarding the seizure, forfeiture, and distribution of property under this chapter.

POSTFORFEITURE

Section 32. {Sale of Property}

(A) If a trier of fact finds that property is to be forfeited, the court shall order the State to:

(1) return stolen property to its owner;

(2) sell all other firearms, ammunition and firearm accessories to licensed

firearms dealers in a commercially reasonable manner; [or, if applicable, in accordance with the state’s Disposition of Firearms in State and Local Custody Act]; and

(3) sell other property in a commercially reasonable manner.

Section 33. {Prohibition on Retaining Property; Sale Restrictions}

(A) The law enforcement agency that seized property forfeited under this chapter may not retain it for its own use or sell it directly or indirectly to any employee of the agency, to a person related to an employee by blood or marriage, or to another law enforcement agency.

Section 34. {Disposition of Proceeds}

(A) Proceeds seized and proceeds from the sale of forfeited assets may be distributed only following a court order.  The court shall order the funds be used to pay, in order of priority, for the following purposes:

(1) storage and sale expenses;

(2) satisfaction of valid liens against the property;

(3) restitution ordered to the victim of the criminal offense;

(4) reimbursement of investigation costs excluding salaries that the law enforcement agency incurred in the seizure of the assets subject to the forfeiture action;

(5) court-ordered child support obligations;

(6) claims for compensation by the defendant’s employees; and

(7) claims for compensation by defendant’s unsecured creditors.

(B) All remaining funds must be deposited into the State’s treasury and credited to the general fund.

Section E. Disposition of Unclaimed Property, Contraband and Abandoned Proceeds.

(A) At any time when unclaimed property or contraband held for evidentiary purposes is no longer needed for that purpose, the court may order it be delivered to the state treasurer within 30 days, or, in the case of contraband, be destroyed within 30 days.

(B) All abandoned property shall be delivered to the state treasurer within 30 days after seizure.

(C) The state treasurer shall dispose of all unclaimed property and abandoned property at public auction and deposit proceeds in the state’s general fund.

Section 35. {Reporting}

(A) For each forfeiture action occurring in the State regardless of the authority for it, the participating law enforcement agency and prosecutor shall provide a written record of the forfeiture incident to the State reporting agency.

(B) The record must include the amount forfeited, the underlying crime or conduct, its date, and whether the property had a lien against it.  The record must also list the number of firearms forfeited and the make, model, and serial number of each firearm forfeited.  The record must indicate how the property was disposed.

(C) The law enforcement agency and the prosecutor shall report to the State reporting agency all instances in which property seized for forfeiture is returned to its owner either because forfeiture is not pursued or for any other reason.

(D) For forfeitures resulting from the activities of multi-jurisdictional law enforcement entities, each entity on its own behalf shall report the information required in this section.

(E) The State reporting agency may require information not specified in this section to be reported as well.

(F) Reports must be made on a monthly basis in a manner prescribed by the State reporting agency.

(G) The State reporting agency shall report annually to the legislature and the public on the nature and extent of forfeitures.

(H) The State reporting agency shall include in its report required under paragraph (G) recommended changes to forfeiture law to better ensure that forfeiture proceedings are handled in a manner that is fair to innocent property owners, secured interest holders, citizens, and taxpayers.

(I) The State reporting agency shall include in its report required under paragraph (G) information on law enforcement agencies and prosecutorial offices not in compliance with this section and shall order the State to withhold payment of any funds to those agencies and offices until compliance is achieved.

MISCELLANEOUS PROVISIONS

Section 36. {Disposing of Property of a Person Deported}

(A)  This section covers procedures for disposing of property when the owner is deported from the United States to a foreign country.

(B) If the owner of property is deported after

(1) being convicted of a violation of a state law that is subject to forfeiture and

(2) the property is found to be an instrumentality or proceeds of the violation of that state law, the court shall enter an order disposing of the property in accordance with sections 33, 34, and 35.

(C) If the owner of property is deported but

(1) the owner is not convicted of violating a state law that is subject to forfeiture or

(2) the property is not found to be an instrumentality or proceeds from the violation of a state law subject to forfeiture for which the owner of the property is convicted, the property shall be returned to the next of kin of the person deported.

(D)  If the next of kin is not known or refuses the property, the State shall exercise reasonable diligence to identify persons with a potential interest in the property and make reasonable efforts to give notice to potential claimants.  The State shall provide written notice to persons known or alleged to have an interest in the property including other family members and any person potentially making claims for court-ordered child support, employment-related compensation, or payment of debts.  The notice must also be made by publication in a reasonable geographic area.

(E)  If no claim is made within 60 days of the notice’s publication date, the court shall enter an order disposing of the property in accordance with section 33, 34, and 35.

(F)  A person wanting to assert a legal claim to the property shall, within 60 days of the date of the applicable notice in (D), petition the court for a hearing to adjudicate the validity of the alleged interest in the property.  The petition for the hearing must be signed by the claimant under penalty of perjury.  It must state the nature and extent of the claimant’s right, title, or interest in the property; the time and circumstances of the claimant’s acquisition of the right, title, or interest; and any additional facts supporting the claim and the relief sought.

(G) The court shall schedule a hearing as soon as practicable to determine if the claimant has a legal right, title or interest in the property or is a bona fide purchaser for value of the legal right, title or interest in the property.

Section 37. {Return of Property, Damages, and Costs}

(A) The State shall return property to the owner within a reasonable period of time not to exceed 3 business days after a court finds that:

(1) the owner had a bona fide security interest;

(2) the owner was an innocent owner;

(3) charges against the owner were dismissed; or

(4) the owner was found not guilty of the criminal charge that is the basis for the forfeiture action.

(B) If property returned under paragraph (A) has been damaged, the owner may make a claim in small claims court or court for the damages to the seized property against the agency that seized the property.

(C) The State is responsible for any storage fees and related costs applicable to property returned under paragraph (A).

Section 38. {Penalty for Violations}

(A) Any person acting under color of law, official title, or position who takes any action intending to conceal, transfer, withhold, retain, divert, or otherwise prevent any proceeds, conveyances, real property, or any things of value forfeited under the law of the State or the United States from being applied, deposited, used, or returned to the owner in accordance with this chapter is subject to a civil penalty in an amount of three times the value of the forfeited property concealed, transferred, withheld, retained, or diverted.

(B) Any taxpayer to the State has standing to challenge in court any action contrary to this Act.

Section 39. {Interaction with Federal Government}

(A) No state, county or municipal law enforcement agency or prosecuting authority may enter into an agreement to transfer or refer seized property to a federal agency directly, indirectly, by adoption, through an intergovernmental joint taskforce or by other means for the purposes of forfeiture litigation unless the seized property includes U.S. currency in excess of $100,000.

(B) All state, county or municipal law enforcement agencies shall refer seized property to the appropriate state, county or municipal prosecuting authority for forfeiture litigation under this chapter unless the seized property includes U.S. currency in excess of $100,000. If seized property includes U.S. currency in excess of $100,000, the state, county or municipal law enforcement agency has the option but is not required to refer or transfer the seized property to a federal agency for forfeiture litigation under federal law.

(C) Nothing in paragraphs (A) or (B) shall be construed to restrict state, county or municipal law enforcement agencies from collaborating with a federal agency to seize contraband or property that the law enforcement agency has probable cause to believe is the proceeds or instruments of a crime through an intergovernmental joint taskforce.

(D) All funds paid by the federal government must be deposited into the State’s treasury.  The State shall credit:

(1) the State government unit involved with the federal government sufficiently to reimburse it for investigation costs, excluding salaries, that the State government unit incurred related to the seizure of the assets subject to the forfeiture action and

(2) the remainder to the general fund.

(E) No unit of State government may accept from the federal government any
instrumentality or payment of proceeds not permitted by paragraph (C).

(F) The State government unit shall report all transfers to the federal government of an investigation or criminal proceeding that involves forfeiture per the reporting requirements in section 36.

(G) Any taxpayer has standing to challenge in court the receipt of any proceeds or instrumentality by a State government unit from the federal government contrary to paragraphs (D) and (E).

Section 40. {Attorneys’ Fees}

(A) In any forfeiture proceeding under this chapter in which the claimant prevails, the State is liable for:

(1) reasonable attorney fees and other litigation costs reasonably incurred by the claimant;

(2) postjudgment interest; and

(3) in cases involving currency, other negotiable instruments, or the proceeds of an interlocutory sale:

(a) interest actually paid to the State from the date of seizure of the property that resulted from the investment of the property in an interest-bearing account or instrument; and

(b)   an imputed amount of interest that the currency, instruments, or proceeds would have earned at the rate applicable to the 30-day U.S. Treasury Bill, for any period during which no interest was paid (not including any period when the property reasonably was in use as evidence in an official proceeding or in conducting scientific tests for the purpose of collecting evidence), commencing 15 days after the property was seized by a law enforcement agency.

Section 41. {Severability clause}

Section 42. {Repealer clause}

Section 43. {Effective date}