How to beat legalized larceny

Six months after the Drug Enforcement Administration stole $43,000 from Stacy Jones at a North Carolina airport, her lawyer 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 wrote.

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 originally filed in January, arguing that the DEA’s practice of robbing travelers violates the Fourth Amendment. 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.

The Institute for Justice 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 the Institute of Justice’s 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 the Institute 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.

Jacob Sullum is a senior editor at Reason magazine.

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