Motion for Summary Judgment in a Contraband Forfeiture Case in Florida

In a contraband forfeiture case in Florida, the seizing agency often moves for summary judgment by arguing that the evidence is so lopsided that a trial is unnecessary. The seizing agency’s motion will attach the evidence which might include the seizing agent’s affidavit, depositions, or other evidence.

To keep your property, you must file a response within 40 days of the date you were served with the seizing agency’s motion for summary judgment to permanently forfeit the vehicle. Under Florida law, specifically the Florida Contraband Forfeiture Act (FCFA), a court can grant this motion only if the Petitioner proves there are no “genuine issues of material fact” and that they are entitled to judgment as a matter of law.

This article discusses a motion for summary judgment for a case filed under the Florida Contraband Forfeiture Act. The rules for summary judgment under federal law are different.

Filing a response is not a “good do it yourself” project because the seizing agency might also alleged the claimant committed some crime. Without help from an attorney responding to those allegations, the claimant might inadvertently make statements that can be used against them if any criminal charge is filed.

Identify “Genuine Issues of Material Fact”

The most effective way to defeat summary judgment is to show that the facts are in dispute. The response to the motion for summary judgment might also show the evidence supporting any affirmative defense such as the property has no “nexus” to the crime alleged, the owner is an “innocent owners,” or the Excessive Fines Clause prohibits the forfeiture because the value of the property is disproportionate to the offense.

What the Agency’s Motion for Summary Judgement Argues

This sample argument involves a forfeiture of a vehicle involved in an allegation of Fleeing or Attempting to Elude Law Enforcement with Disregard for Safety to Persons or Property pursuant to FL Stat. 316.1935(3)(a). The agency’s motion for summary judgement might provide:

PETITIONER’S MOTION FOR SUMMARY JUDGMENT

COMES NOW the Petitioner, [name of seizing agency], and files its Motion for Summary Judgment in this case and states as follows:

1. This forfeiture action involves [description of property] is brought pursuant to the Florida Contraband Forfeiture Act, sections 932.701-706, Florida Statues.
2. The property subject to forfeiture in this cause was seized on [date] in ____ County, Florida.
3. This Court issued an Ex Parte Order Finding Probable Cause on [date] , and an Order Finding Probable Cause and Directing Claimant to Respond
   after an Adversarial Preliminary Hearing on [date].
4. There are two potential claimants known to the Petitioner including [explain who the potential claimants are]
5. Claimant, the owner, was served with a copy of the Order Finding Probable Cause and the Verified Complaint following an Adversarial Hearing held on [date].
6. On [date], Claimant through counsel signed a Waiver of Service of Process of the Verified Complaint for Forfeiture and the Order Finding Probable
   Cause and Directing Claimant to Respond entered on [date].,
7. On [date], Claimant filed Answer to the Complaint.
8. Nine affirmative defenses were raised:
   1. the complaint failed to state a claim upon which relief may be granted;
   2. forfeiture of the seized property is barred by the prohibition against excessive fines;
   3. the seized property is not from any prohibited source and therefore is not subject to forfeiture;
   4. the seized property is not otherwise subject to forfeiture;
   5. the forfeiture is barred by the prohibition of depriving citizens of property without due process of law as provided in the Fifth Amendment of the United States Constitution;
   6. Claimant is an innocent owner who did not know and should not have known, after a reasonable inquiry, that the property was being employed or was likely to be employed in criminal activity;
   7. evidence of the seized property should be suppressed under the Fourth Amendment of the United States Constitution;
   8. Claimant is entitled to reasonable attorney fees and costs per statute, and
   9. Claimant reserves the right to amend.
9. On [date], Claimant’s deposition was taken in the presence of a court reporter. Claimant was under oath and was represented by his attorney Leslie Sammis. See Exhibit 1, Deposition of [Claimant].
10. During the deposition, ….
11. The seizing agency filed a sworn affidavit, filed as part of the Verified Complaint on [date], which contains essential facts that prove a violation of the Florida Contraband Forfeiture Act. The seizing agent’s affidavit is attached as Exhibit 2.
12. The seizing agent’s affidavit shows….
13. As to Claimant’s First Affirmative Defense, the Complaint contains sufficient allegations concerning the facts supporting the basis for forfeiture of the seized property. The Court has previously found probable cause twice.
14. The Claimant’s Second Affirmative Defense is that forfeiture violates the Eighth Amendment’s Excessive Fines Clause. However, this argument is inapplicable because the value of the vehicle is not grossly disproportionate to the gravity of the Claimant’s offenses and imposable fine for the felony committed. The factors the Court uses to measure the proportionality of a forfeiture subject to the Excessive Fines Clause are: (1) whether the defendant falls into the class of persons at whom the criminal statute was principally directed; (2) other penalties authorized by the legislature or sentencing commission; and (3) the harm caused by the defendant. See In re Forfeiture of 2006 Chrysler 4-Door, VIN 2C3KA53GX6H258059, 9 So.3d 709, (Fla. 2nd DCA 2009). In applying the above court factors, the Claimant was arrested and
    charged with Fleeing or Attempting to Elude Law Enforcement with Disregard for Safety to Persons or Property pursuant to FL Stat. 316.1935(3)(a), and Reckless Driving pursuant to FL Stat. 316.192(1)(a). Under Florida law, any motor vehicle involved in a violation of this section (316.1935) is deemed to be contraband, which may be seized by a law enforcement agency and is subject to forfeiture pursuant to ss. 932.701-932.704. See Fl. Stat. 316.1935(7). As such, Claimant falls into the class of persons at whom the criminal statute was principally directed. Second, under Florida Law, second degree felony Fleeing or Attempting to Elude Law Enforcement with Disregard for Safety to Persons or Property is punishable up to $10,000 and Reckless driving is punishable up to $500. See Fl. Stat. § 775.083. Thus, the total
    criminal fines Claimant faces is $10,500. The value of the property is ______. In comparison to his criminal fines, this amount is not grossly disproportionate to the gravity of the Claimant’s offense. Claimant’s actions of Fleeing or Attempting to Elude Law Enforcement is a public safety concern due to its inherently dangerous
    nature towards the public and property. Therefore, Claimant’s second Affirmative Defense is legally insufficient and should be stricken.
15. As to the Claimant’s Third Affirmative Defense, that the seized property is not from any prohibited source and not subject to forfeiture, is inapplicable. The source of the vehicle is irrelevant, but rather the fact that the vehicle was an instrumentality used in the commission of Fleeing or Attempting to Elude a Law Enforcement Officer subjects it to forfeiture pursuant to Florida Statute § 316.1935(7).
16. As to Claimant’s Fourth Affirmative Defense, the seized property is subject to forfeiture since it was used or attempted to be used as an instrument in the
    commission of, or in aiding or abetting in the commission of, a felony as stated in the Florida Contraband Act.
17. As to Claimant’s Fifth Affirmative Defense, about his Fifth Amendment Due Process right regarding notification, notice pursuant to Florida Statue 932.703
    was satisfied. The language in Florida Statute 932.703(3)(a) states in part, “Personal property may be seized at the time of the violation […] if the person entitled
    to notice is notified […] by certified mail […] within 5 working days after the seizure and must state that a person entitled to notice may request an adversarial preliminary hearing within 15 days after receiving such notice. Petitioner has complied with the notice requirements and proof of such was filed with the Court on [date] along with the Ex Parte Application for Probable Cause.
18. As to Claimant’s Sixth Affirmative Defense, that he is an innocent owner who did not know and should not have known after a reasonable inquiry, that the property was being employed or was likely to be employed in criminal activity is without merit as the Claimant himself is the person who committed the felony violation of Fleeing or Attempting to Elude a Law Enforcement Officer (Fl. Stat. § 316.1935). An innocent owner is someone who is not present or has no knowledge of the offense committed. The Claimant cannot be an innocent owner since he committed the crime himself.
19. As to Claimant’s Seventh Affirmative Defense, there was lawful basis for the seizure of the vehicle. Probable Cause has previously been established on two
    separate occasions in this matter.
20. As to Claimant’s Eighth Affirmative Defense is that the Claimant is entitled to reasonable attorney fees and costs per statute. If the claimant prevails after an adversarial preliminary hearing, the court shall award reasonable attorney’s fees and costs up to $2,000. When the claimant prevails at the close of forfeiture proceedings and any appeal, the court shall award reasonable trial attorney’s fees and costs if the court finds that the seizing agency has not proceeded at any stage of the proceedings in good faith or that the seizing agency’s action which precipitated the forfeiture proceedings was a gross abuse of the agency’s discretion. In this case, the Claimant did not prevail in an Adversarial Preliminary Hearing as demonstrated by the Order Finding Probable Cause and Directing Claimant to Respond after an
    Adversarial Preliminary Hearing entered on [date]. The forfeiture proceedings are still pending, and the Claimant has yet to prevail. Additionally, the Claimant has failed to show bad faith or a gross abuse of agency discretion.
21. As to Claimant’s Ninth Affirmative Defense, to date, Claimant has not amended his affirmative defenses and has failed to produce additional affirmative defenses. Petitioner filed its Reply on [date], denying the above-mentioned affirmative defenses.
22. On [date], Claimant was charged for a felony (Fleeing or Attempting to Elude a Law Enforcement Officer, Florida Statues 316.1935) that forms the basis for determining that the property is a contraband article under Section 932.701, Florida Statutes.
23. There are no disputed issues of fact in this action. Thus, the Vehicle was used in violation of 316.1935 and 932.701, F.S., and the Vehicle is contraband
    pursuant to 316.1935(7) and 932.701(2)(a)5, F.S.
24. Petitioner has complied with the publication requirements of the Florida Contraband Forfeiture Act, and there are no other Claimants to the property seized.
25. There are no disputed issues of fact in this action.
26. Thus, the Vehicle was used in violation of 316.1935 and 932.701, F.S., and the Vehicle is contraband pursuant to 316.1935(7) and 932.701(2)(a)5, F.S.
27. Petitioner has complied with the publication requirements of the Florida Contraband Forfeiture Act, and there are no other Claimants to the property seized.

ARGUMENT

As a matter of law, the Florida Contraband Forfeiture Act mandates the forfeiture of any contraband article used in violation of the Florida Contraband Act, or upon which a violation of the Florida Contraband Act has taken place. In this case, the Vehicle was used in violation of the Florida Contraband Act, mandating the forfeiture of the Vehicle.

A movant for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact. Once competent evidence is tendered in support of the motion, the opposing party must come forward with counter evidence to reveal a genuine issue. It is not enough to merely assert that an Motion For Summary Judgment issue does exist. Landers v. Milton, 370 So. 2d 368 (Fla. 1979). Nor do issues of fact arise merely because the non-moving party disagrees with those facts established by the competent evidence or because he wishes to have a jury pass judgment and make an independent determination. F & R Builders v. Lowell Dunn Co., 364 So.2d 826 (Fla. 3rd DCA 1978).

An issue of fact is “genuine” for summary judgment purposes if it could allow a jury to return a verdict in favor of the non-moving party, and an issue of fact is “material” if it could have any bearing on the outcome of the case under the applicable law. Del Rio v. Russell Engineering, Inc., 351 So.3d 1180, 1182 (Fla 3rd DCA 2022).

If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it. Id. at 1182-1183 (internal citations omitted).

Summary judgment is proper if a party moved against is without evidence to support a fact which he must establish to succeed or is without evidence to rebut fact established by the moving party, which, if true, precludes judgment in his favor. Connolly v. Sebeco, 89 So. 2d 482 (Fla. 1956).

A party cannot remain silent in response to a summary judgment and also continue to maintain a claim. Zabrini v. Riveron, 495 So. 2d 1195 (Fla. 3d DCA 1986). An opposing party must come forward with counter evidence sufficient to raise a genuine issue of material fact. Id.

There are no disputed issues of fact in this action because…

The vehicle was used in violation of sections 932.702 and 316.1935, Florida Statues and the vehicle is contraband pursuant to section 932.701(2)(a)(5) and 316.1935(7), Florida Statutes.

Claimant, _____, has failed to put forth any affirmative defense which would have entitled him as the Claimant to repossession of the item.

WHEREFORE, as there is no genuine issue of material fact and there is no lawful affirmative defense asserted by Claimant, Petitioner respectfully moves this Court to grant its Motion for Summary Judgment as to _______ and enter an order awarding the vehicle to the [seizing agency].

Claimant’s Response to Petitioner’s Motion for Summary Judgment

If served with a motion for summary judgment filed by the seizing agency, the Claimant might file the following type of response:

CLAIMANT’S RESPONSE TO PETITIONER’S MOTION FOR SUMMARY JUDGMENT

Claimant, ______, by and through undersigned counsel, responds to Petitioner’s Motion for Summary Judgment and states:

I. MEMORANDUM OF LAW

Summary judgment is only appropriate where there is no genuine dispute as to any material fact. The Court must draw every possible inference in favor of the non-moving party. If the evidence is conflicting or allows for different reasonable inferences, the motion must be denied.

II. GENUINE ISSUES OF MATERIAL FACT PRECLUDE SUMMARY JUDGMENT

Petitioner’s motion relies entirely on the premise that…. However, the record contains the following significant evidence contradicting this:

1. [[explain that evidence and attach an affidavit or deposition that prove it]
2. [[explain any other evidence and attach an affidavit or deposition that prove it]

III. ARGUMENT

Petitioner’s motion asks this Court to weigh the credibility of the seizing agent’s affidavit against __[the source of the evidence that favors the Claimant]___.  Under Florida law, a trial court may not weigh the credibility of witnesses on a motion for summary judgment. Whether __[the seizing agency’s contention is true or not]_____is a question of fact for a jury.

WHEREFORE, Claimant respectfully requests this Court DENY Petitioner’s Motion for Summary Judgment.

CERTIFICATE OF SERVICE

(Standard Certificate of Service here)

Read more about the consequences of being arrested for Fleeing or Attempting to Elude Law Enforcement with Disregard for Safety to Persons or Property pursuant to FL Stat. 316.1935(3)(a).

This article was last updated on Wednesday, April 1,