Compensation for Legal Fees Is a Critical Protection Against Civil Forfeiture Abuses
A recent federal appeals court decision underlines the importance of that safeguard.
On a Friday in March 2021, Brian Moore, an aspiring rap artist, was about to catch a flight from Atlanta to Los Angeles, where he planned to produce a video that he hoped would promote his musical career. To pay for the video, he was carrying $8,500 in cash, money he had inherited from his late grandfather.
Federal drug agents put an end to Moore's plan by taking his money, which they vaguely alleged was connected in some way to illegal drug activity. What happened next illustrates the importance of legal safeguards against the dangers posed by civil forfeiture, a system of legalized larceny that authorizes law enforcement agencies to pad their budgets by seizing supposedly crime-tainted assets without filing criminal charges, let alone obtaining a conviction.
While profit-motivated law enforcement agencies tend to portray it as inherently suspicious, there is nothing illegal about traveling with large sums of cash. And although the government claimed a drug-detecting dog "alerted" to Moore's money, that is less incriminating than it sounds, since research has found that most U.S. currency contains traces of cocaine.
The government's evidence was so weak that it decided to drop the case after Moore challenged the seizure in federal court. Moore got his money back, but he was still out thousands of dollars in legal fees until last week, when the U.S. Court of Appeals for the 11th Circuit ruled that he was entitled to compensation for those expenses.
Unlike criminal defendants, civil forfeiture targets have no right to court-appointed counsel, which helps explain why they usually give up without a fight. According to one estimate, more than nine out of 10 federal civil forfeiture cases are resolved without judicial involvement.
Challenging a forfeiture is a complicated and daunting process that is very difficult to navigate without a lawyer. But the cost of hiring one typically exceeds the value of the seized property, meaning forfeiture targets can lose even when they win.
Congress tried to address that problem by passing the Civil Asset Forfeiture Reform Act (CAFRA), a 2000 law that says "the United States shall be liable for reasonable attorney fees" whenever a property owner "substantially prevails" in a federal forfeiture case. But when Moore got his money back and sought $15,000 to pay his lawyers, U.S. District Judge Thomas W. Thrash Jr. ruled that he was not entitled to compensation under CAFRA because he had not met that standard.
Under Moore's contingency fee agreement with his lawyers, that decision left him on the hook for one-third of the money he had recovered. But with pro bono help from the Institute for Justice, Moore appealed Thrash's ruling, and a three-judge 11th Circuit panel unanimously concluded that the judge had misapplied CAFRA.
The government's prospects of winning at trial were so iffy that the Justice Department asked Thrash to dismiss the case with prejudice, precluding any future attempt to confiscate his money. According to the 11th Circuit, that judicially endorsed outcome was enough to conclude that Moore had "substantially prevail[ed]."
"We're pleased to see Brian made whole after years of litigation, but his case highlights the abusive civil forfeiture tactics used by the federal government, which will litigate a case against a property owner for years and then voluntarily dismiss the case on the eve of the government's defeat," says Institute for Justice Senior Attorney Dan Alban. "Without the ability to recover their attorneys' fees after victory, most property owners cannot afford to defend their property from forfeiture"—a reality that motivated the "critical protections for property rights" that Congress approved in 2000.
"It's a huge relief to have the court agree that I should get all my money back," Moore says. "Even though the government couldn't say what I did wrong and dropped the case, I was going to lose thousands of dollars. I hope that my victory can pave the way for others to get justice without paying a price."
© Copyright 2025 by Creators Syndicate Inc.
