Appeals Court Smacks Lower Court For Making It Even Harder For People To Challenge Civil Asset Forfeiture

Asset forfeiture often appears to be nothing more than the government seeing just how hard and long it can screw someone. Beyond the fact that assets can be seized, deemed guilty and spirited away into the pockets of multiple law enforcement agencies with minimal effort, there's the long and expensive battle citizens must fight to reclaim what the government has taken from them.

Five years ago, Robert Moser was arrested by federal agents. They took him home to pick up his medication before taking him in for processing. When they were there, they asked if he had any weapons in the house. He said he did and told them where to find it. The feds called in a local sheriff to take control of the weapon. When the deputy arrived, he said he smelled marijuana. Moser handed over a trash bag with discarded marijuana plants. At that point, the deputy decided he'd take a look around the garage and house -- all without obtaining a warrant -- and discovered a small grow operation, along with a pile of cash.

A couple of years later, the court found that Moser had been subjected to "serial constitutional violations" that were "purposeful and flagrant." It suppressed the evidence obtained by the illegal search, including the $28,000 that was found on the premises.

The government didn't let go of the cash so easily, though. It fought the return of the illegally-seized money for another year, causing Moser to rack up legal bills that exceeded the amount of cash taken from him. The district court again found in favor of Moser and awarded him legal fees… but only a small portion of what had been requested. His lawyer went in seeking over $50,000. Moser left with only $14,000.

The Ninth Circuit Appeals Court has corrected the lower court's fee award, and it's none too thrilled that the lower court pitched in to screw Moser and his attorney. Moser's attorney's fee estimate was fair and well-documented.

As the prevailing party, Moser then moved for attorney’s fees under CAFRA [Civil Asset Forfeiture Reform Act of 2001]. See United States v. $186,416.00 in U.S. Currency, 642 F.3d 753, 754 (9th Cir. 2011). He requested fees of $50,775, based on Barnett’s hourly rate of $500 and 101.55 hours of work. The motion was supported by declarations from attorneys knowledgeable about legal fees in the San Diego market, including several specializing in forfeiture litigation. Barnett provided a detailed accounting of his hours and eliminated 25.95 hours from the fee request because he considered the work “fruitless or unnecessary.”

Here, the lower court did the government's work for it by recharacterizing the nature of the litigation and applying outdated pay scales.

[T]he court awarded Moser only $14,000 in fees. Disregarding three declarations from forfeiture specialists, the district court incorrectly stated that Moser’s declarations did not accurately reflect the forfeiture market rate because they discussed only litigation fees generally. The court then purported to apply its own knowledge of the market, and, based on its characterization of Barnett’s work as essentially criminal in nature and a nine-year-old fee award mentioned in one of the declarations, determined that $300 was a reasonable hourly rate.

Then it blamed the victim.

Turning to the hours expended, the court found that Barnett gave the government’s aggressive and often specious litigation arguments “more respect than [they] deserved,” and that such an experienced attorney should have expended fewer hours opposing the government’s arguments. Although the court specifically identified as questionable only 6.75 hours of work on a reply brief, it reduced the hours for which fees would be awarded from 101.55 to 60.

When slashing the hours supposedly "misspent" by Moser's lawyer, the court refused to show its work. A footnote explains just how wrong the court was to claim hours spent defending against the government's bullshit arguments were somehow excessive, and therefore unrecoupable.

When the government takes unsupported positions, an applicant is not unreasonable in responding forcefully. There is no indication that anything but Barnett’s professional judgment guided his approach to the litigation. A CAFRA claimant should not be concerned that his attorney is advocating less than zealously out of fear that the district court will take a different view of what the case required and reduce any fee award accordingly.

Evan Bernick of the Institute for Justice (which has battled against asset forfeiture for years) applauds the Appeals Court for wading into the murkier depths of forfeiture litigation -- the fee awards that make these nearly insurmountable challenges worth undertaking on behalf of screwed citizens.

As Bernick states, the public is slowly moving towards shutting this crooked system down. Because at this point, there seems to be only two groups of people that still support it: law enforcement and people who've never heard of it.

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