Civil Asset Forfeiture

How to Beat Legalized Larceny

Government bullies empowered by civil forfeiture laws often back down, but only when their victims can afford a fight.


Six months after the Drug Enforcement Administration stole $43,000 from Stacy Jones at a North Carolina airport, her lawyer, Dan Alban, received a letter from the aptly named Douglas Kash, a senior attorney in the DEA's Asset Forfeiture Section. "I am writing to inform you of the decision to return the above-referenced property," Kash said.

While the DEA offered no explanation for its sudden benevolence, the reversal fit a pattern: Government bullies who use civil asset forfeiture laws to seize allegedly crime-tainted property from innocent people tend to back down when they encounter unexpected resistance. But because challenging a forfeiture is complicated and expensive, most targets of legalized larceny are in no position to put up a fight.

On May 19, Jones and her husband, who had flown to North Carolina for a casino reopening, were on their way back to Tampa, having cut their visit short because of a death in the family. They had brought cash with them for gambling and acquired more after selling a car to friends.

Although Jones was doing nothing illegal, an airport screener alerted a sheriff's deputy, who in turn alerted the DEA, which tends to view large amounts of cash as inherently suspicious. Based on nothing more than a hunch that the money was connected to illegal activity, the DEA seized it—the first step in a confiscation process that the government can complete without ever filing criminal charges.

In July, Jones joined a class-action lawsuit that the Institute for Justice (I.J.) originally filed in January, arguing that the DEA's practice of robbing travelers violates the Fourth Amendment's ban on unreasonable searches and seizures. Four months later, the DEA evidently decided that Jones wasn't a criminal after all.

Jones' experience mirrored what had happened with the lead plaintiffs in the lawsuit. Terrence Rolin, a 79-year-old retired railroad engineer, lost his life savings—$82,373—to a DEA seizure after his daughter, whom he had charged with depositing the money in a joint bank account, took it with her while flying from Pittsburgh, where she was visiting him, to her home in Massachusetts. Two months later, after the case attracted national publicity, the DEA agreed to return the money.

The same basic scenario has played out over and over again in civil forfeiture cases. Until a 2019 law banned the practice, for example, the IRS had a habit of seizing people's bank accounts based on nothing more than deposits it deemed suspiciously small, which it saw as evidence of illegal "structuring" aimed at evading federal reporting requirements.

I.J. has represented several victims of that policy, including an Iowa restaurateur, a North Carolina convenience store owner, a Maryland dairy farmer, and a Long Island candy wholesaler. In all of those cases, negative publicity and legal risk apparently persuaded the government to return the money.

Charles Clarke, a college student who was robbed of $11,000 in cash by cops at the Cincinnati/Northern Kentucky International Airport in 2014, got his money back with interest under a 2016 agreement negotiated by I.J. Gerardo Serrano, whose pickup truck was seized at the border with Mexico in 2015 because of a few forgotten handgun rounds (arms smuggling!), got it back in 2017, a month after I.J. filed a lawsuit on behalf of him and similarly situated travelers.

Kevin McBride, a Tucson handyman, lost his Jeep last May because his girlfriend allegedly used it for a $25 marijuana sale. Local prosecutors decided to return the vehicle three months later, the day after the Goldwater Institute threatened to sue.

Despite the anxiety and hardship they suffered, these property owners were relatively lucky, because they had pro bono legal assistance. Unlike criminal defendants, owners of seized assets generally have no right to court-appointed counsel.

Challenging a forfeiture often costs more than the property is worth, and there is no guarantee of victory. That makes surrender the most sensible option for most forfeiture victims, which helps preserve a system that turns cops into robbers.

© Copyright 2020 by Creators Syndicate Inc.

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  1. I hope IJ will push to have a court hear the case and not moot it, because getting a court ruling against the practice generally would be a much more valuable use of their time than trying to pro-bono represent a handful of affected people.

    1. Seems to me (IANAL) that at the very least, there is interest and lawyer's fees.

      I really wish someone would run for District Attorney with the explicit platform of charging cops with actual crimes, not civil suits. It's my understanding the qualified immunity does not apply to criminal charges. But even if it does, I'd like to see a DA who would charge crops with crimes just to get it on the record, even if QI is applied.

      The cops would freak out and threaten to fuck up cases, which would just be grounds for more criminal charges and firings. I'd really like to see a government prosecutor who saw bad cops as the enemy.

      1. The whole point of being a cop is that you can do whatever you want, and the entire system looks the other way. I bet every single cop under that DA's jurisdiction would quit, and the uproar would get them thrown out of office and maybe into jail.

        1. By "them" I meant the DA, not the cops.

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  3. Theft By Any Other Name

    Excerpt from the novel, Retribution Fever:

    The obverse had been a practice known as “civil forfeiture”. Innocent until proven guilty was a bedrock principle of U.S. justice. In most states, if a police officer merely suspected that property was connected to a crime, he could seize it without any actual evidence of wrongdoing. Through a federal program called “Equitable Sharing”, police could confiscate eighty percent of seized value. To recover that which was rightfully theirs, Americans must have proven that the property had no connection to a crime.

    [Optional Note for Readers: The practice had begun with the British several hundred years ago in order to deal with pirates beyond the reach of maritime law, judging the goods guilty of the crime, if not the accused. During the War Between the States, the Union adopted the practice to confiscate Northern property owned by Southerners. In 1921, the U.S. Supreme Court in J. W. Goldsmith, Jr.-Grant Co. v. United States endorsed the practice. Early on, however, it dealt more with payment of customs-duties and rarely applied to ordinary citizens until 1984 when Congress created the “Assets Forfeiture Fund” within the Department of Justice supposedly to impede drug-trafficking. The program generalized from there, as do such programs fostering theft by government.]

    1. A terse and objective summarizing. British ships were confiscated for their bars and liquor cabinets under "libel" powers built into 1922 and earlier tariff laws. This struggle helped rattle the economy, slow repayment of war debts and was finally circumvented by tweaking the laws diplomatically. Spinelli's "Dry Diplomacy" covers this in detail.

  4. Time to drop another donation of IJ.

    1. "on"

      Surely, someone could put an edit function on this board.

      1. They won't even stop the spam. what makes you think they'd give us an edit button? something that we've been asking for since forever.

        1. I think they don’t do that or moderate for legal reasons.

          I wouldn’t worry about the edit. I use voice recognition for work and “dragon errors” happen all the time. People can read through it.

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  5. Why should LE operate ant different from the rest of us?

    1. Decide what we want.
    2. Cherry pick some random observation (or just make shit up).
    3. Invent a narrative that proves our delusion and justifies our actions.
    4. Profit.

  6. Why can't the US Treasury refund all these monies, like every seizure they make? They throw around bucks like crazy, you'd think these seizures would be a pittance they could easily afford. So just make people happy, give 'em money — their own or anyone else's.

    1. Seriously, who would be made unhappy by a policy of immediately refunding the value of whatever they seized? It must be the tiniest sliver of federal outlays. They'd still be taking the "guilty property", but at least the owners wouldn't be out the cash value of it, which the US Treasury doesn't need. Can you imagine anyone complaining against such a policy?

      1. Sure, just add it to the list. It's all pretend money anyway, amiright?

  7. Thanks to Jacob Sullum for finally writing an article advocating libertarianism.

    Had he and others at Reason NOT been obsessed with trashing Trump and campaigning for Biden, and had instead devoted more of Koch's $$$$$$$ to eliminating/reducing civil asset forfeiture and the War on Drugs, perhaps there would be fewer civil asset forfeitures and fewer arrests and incarcerations for illegal drugs.

    1. Maybe some people just think the President of the United States of America should be an adult.

    2. Note to foreign readers: National Socialist faith holds that only socialism exists, and that if Hitler loses, Stalin wins. So? oder so? was the way their posters put it in 1933. Orwell notes this in Through a Glass Rosily, and the fallacy was exposed in the "Opinions and Social Pressure" experiments. Dems and Republicans are as alike as the commies and nazis they mimic. They fear libertarian spoiler votes--votes that corner them into repealing bad laws. The Dem platform dropped violent prohibitionism because voters chose the LP, not National Socialism. Trump lost by listening to prohibitionist fanatics and girl-bulliers like Godsayeth here.

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  8. I desire IJ will push to have a court hear the case and not moot it, due to the fact getting a court docket ruling against the practice normally might be a miles more treasured use of their time than looking to pro-bono represent a handful of affected people.

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  10. The DEA is only returning the money because they are going they can get the class action dismissed for lack of standing. Hopefully the courts will have the intestinal fortitude to see through that.

  11. I am confident that Sullum will soon learn that asset forfeiture also causes crashes, recessions, economic collapse. Can it be coincidence that Republican prohibitionists held power in 1907, 1920, 1929-33, 1971, 1987 and 2008? Who will categorically state that Treasury and DEA raids on banks and brokerages have NOTHING to do with sudden withdrawals from the fractional reserve banking system and the liquidity crunches that invariably follow? Suppressing the realization enables prohibitionist looters to pose as guardians of economic stability, not financial arsonists.

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