Civil Seizures | Criminal and Administrative Problems in Washington | A Defense Lawyer’s Viewpoint
Civil Seizure actions have become an increasingly common tactic with police agencies throughout Washington and the Department of Fish & Wildlife is no exception. Fish & Wildlife officers may seize an individual’s personal property if they felt they had probably cause to believe it was intended to be used or had been used in violation of a Fish & Wildlife law. (RCW 77.15.070). As attorneys who practice criminal and civil law, property we commonly see seized includes boats, trucks, ATVs, fishing gear, guns, and other hunting paraphernalia. According to statute, a seizure is not acceptable for inadvertent violations but rather intentional acts and the intent of an individual is not always easily proven. This is where using a criminal defense lawyer who is knowledgeable of the administrative law proceedings is very helpful.
Fish & Wildlife has progressively become more aggressive over time, both in terms of investigative tactics as well as how they charge crimes. Conducting stings and surreptitiously setting up video surveillance just off of private property to record the actions of a private citizen on his property is not unheard of. Similarly, seizures and the threat of seizure are used to create leverage against an individual who is being investigated for a Fish & Wildlife crime to force their cooperation is not unheard of either. The public would also be naive to deny the role seizures play as an economic incentive for Fish & Wildlife to be heavy handed. As attorneys familiar with these actions, we know that forfeited property can be retained for usage by Fish & Wildlife or the property can be sold and the proceeds go to the Fish & Wildlife enforcement reward account. We also know that the cost of using the Attorney General’s Office to prosecute these actions comes out of this budget, so as defense attorneys, this factors into negotiations.
You Need to Act
If your property is seized for forfeiture, it is important to immediately act. You should receive a notice of forfeiture with a list of all items seized within 15 days. (See Example) This notice will instruct you how to initially respond to contest the seizure. You will have 45 days to put the Department on notice that you are contesting the seizure. If you fail to meet this deadline you have then waived your right to your belongings and mistakes are not considered legal excuses.
Contesting a civil forfeiture will initially be designated for an administrative hearing, as provided for under Chapter 34.05 RCW – The Administrative Procedure Act. However, this case can be shifted to another court of competed jurisdiction, such as Superior Court, if the total value of the property seized is over $5,000.
In situations like this, we strongly advise you to hire us. Our office regularly handles criminal charges and administrative seizure action at the same time. If the court determines the seizure was not substantially justified, you may be awarded attorney fees. Fish & Wildlife may be found civilly liable if they are found to have been willful or reckless in matters involving the seizure and forfeiture of personal property with Fish & Wildlife offenses. Similarly, the officer in question may be subject to civil liability for willful misconduct or gross negligence in the performance of his or her duties. In addition to fighting to get your property, an attorney may be able to use the civil forfeiture action as another method to investigate the circumstances to protect you from a criminal conviction.
As criminal defense lawyers who have handled these kinds of forfeiture actions, we emphasize awareness that any interaction with government agents on State, Federal or Private Land should be treated as a criminal investigation by the hunter and any others in the party should abide by our opinion on giving statements to any officer when approached. As an old wise hunter once said, “the less said the better.”