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« BATFE moves to ban SS109/M855 .223 ammo | Main | Supreme Court argument approaching »

Recovering attorneys' fees in Federal forfeiture cases

Posted by David Hardy · 19 February 2015 09:39 AM

By pure luck, I came across this, a provision allowing recovery of attorneys' fees in forfeiture cases. It ought to be of great use in gun forfeiture cases at the Federal level.

28 USC ยง2465(b) provides:

"(1) Except as provided in paragraph (2), in any civil proceeding to forfeit property under any provision of Federal law in which the claimant substantially prevails, the United States shall be liable for--

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

(B) post-judgment interest, as set forth in section 1961 of this title; and

(C) in cases involving currency, other negotiable instruments, or the proceeds of an interlocutory sale--
(i) interest actually paid to the United States from the date of seizure or arrest of the property that resulted from the investment of the property in an interest-bearing account or instrument; and
(ii) an imputed amount of interest that such currency, instruments, or proceeds would have earned at the rate applicable to the 30-day 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 Federal law enforcement agency, or was turned over to a Federal law enforcement agency by a State or local law enforcement agency."

The exceptions in (2) cover forfeiture of intangible rights, claimants who were convicted of the offense, and situations where multiple persons are claiming the same property. So it appears that, as a general rule, a prevailing claimant can recover attorneys' fees in a gun forfeiture case.

1 Comment | Leave a comment

FWB | February 21, 2015 7:54 AM | Reply

Which grant of power enumerated in the Constitution provides authority for the federal government to have criminal laws outside those five or six which are explicitly granted?

(Rhetorical)

There is no grant and none of the federal laws that provide for punishment of crimes other than the 5 or 6 enumerated are constitutional. Jefferson covered them in the 1798 Resolves. There are some amendments but in those cases the authority to "enforce" only allows enforcement against States not individuals.

If the N&P did anything, then half of the powers granted in the same section as the N&P are unnecessary. Those who believe that the N&P provides for some implied powers, imply that the Framers were ignorant and had no understanding of the document they were creating,

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