What is a Writ of Assistance?

A writ of assistance is a document issued by a court to a law enforcement official. This document compels an individual named by the court to hand over documents and possessions to the appointed official. Writs of assistance are rarely utilized in the United States because of constitutional restrictions on court powers. Local, state and federal courts issue writs of assistance in bankruptcy and child custody cases. These limited circumstances lead to alternate titles for a writ of assistance, such as a writ of restitution and a writ of possession.

The British government used a writ of assistance to extract taxes from American colonists following the French and Indian War in 1763. Parliament created revenue policies such as the Stamp Act in 1765 that required taxes on printed goods. Colonists who failed to comply with these policies were subject to writs of assistance by colonial courts. The rise of public protests over British taxation contributed to difficulties in enforcing court orders. The American Revolution and subsequent creation of the U.S. Constitution reduced the prevalence of the writ of assistance.

Legal scholars point to the U.S. Constitution's Fourth Amendment and 14th Amendment in describing the decreased use of the writ of assistance. The Fourth Amendment’s restrictions on illegal searches and seizures placed federal limitations on these orders. Search warrants and writs of assistance issued by courts must pass the probable cause element in the Fourth Amendment. The 14th Amendment prevents deprivation of life, liberty and property without due process of law. This amendment has been interpreted by state courts to limit the power of federal courts to issue a writ of assistance.

Federal bankruptcy courts in the U.S. still use a writ of assistance to extract ownership documents from litigants. These courts set firm dates for delivery of all materials during bankruptcy proceedings. Litigants who fail to meet these deadlines are compelled by writs of assistance to hand over materials to officers. These materials include deeds, bank statements and assets required for the liquidation of businesses. Bankruptcy courts work with the U.S. Marshals Service and local police departments to enforce these court orders.

Another area where writs of assistance are issued is child custody. Local and regional courts set forth conditions for child custody in divorce, abuse and estate cases. Failure to follow through on child custody orders can lead to writs of assistance from family courts. Local and regional sheriffs often are involved in carrying out these writs of assistance. Child custody writs might require the transfer of children to legal guardians or foster homes.