Government to Air Travelers: Sit Back, Give Us Your Cash and Enjoy Your Flight

Ordinary Americans Are Victims of Policing for Profit in Our Nation’s Airports

Introduction

Charles Clarke is a 24-year-old college student. On February 17, 2014, Charles was flying home to Florida after visiting family and friends in Cincinnati. While he was waiting to board his flight, two law enforcement officers approached him at the gate. The two officers, an airport police detective and an officer of the Covington Police Department, serving as a deputized agent of the Drug Enforcement Administration (DEA), began to question Charles. They told him that his checked bag smelled like marijuana. Although Charles was a recreational smoker at the time, the officers did not find any drugs on his person, or in his carry-on or checked bag.

Then the officers asked Charles if he was carrying any cash and he said yes. The government took and kept the $11,000 without charging Charles with, or even accusing him of, any drug crime. But in the upside-down world of civil forfeiture, the burden is on Charles to show that his money is legitimate.

In the past five years, Charles had saved more than $11,000 in cash from financial aid, various jobs, educational benefits based on his mother’s status as a disabled veteran and gifts from family. Charles did not put all of his money in the bank because he preferred to use cash and his bank had few physical branches. He traveled with the cash because he and his mother were moving and Charles did not want the money to get lost while he spent time in Cincinnati.

Under a federal program called equitable sharing, state and local police receive up to 80 percent of forfeiture proceeds in exchange for referring seized property to federal authorities. In 2014 alone, the Cincinnati/Northern Kentucky airport police received over $530,000 in federal forfeiture funds, the third-highest total in the state. ¹  Under this program, 13 different law enforcement agencies from Kentucky and Ohio are seeking their cut of Charles’ money, even though 11 of those agencies were not involved in the seizure. Although earlier this year the Justice Department curtailed one of the most egregious aspects of equitable sharing after widespread criticism, ²  Charles’ case and the behavior of law enforcement demonstrates why the policy changes are insufficient to stem the problem.

Unlike criminal forfeiture, where the government takes someone’s property only after he or she has been convicted of a crime, police and prosecutors can use civil forfeiture to take the cash, cars and homes of people without ever having to convict or even charge the owner with any wrongdoing. This is because civil forfeiture cases technically are filed against the property rather than its owner, leading to unusual names such as United States v. $11,000 in United States Currency.

Shockingly, law enforcement agencies can use the money that they seize through civil forfeiture to pad their budgets. That is a dangerous incentive for law enforcement officials to seize and try to forfeit more and more property.

Carrying cash is not a crime and no one should lose their life savings when no drugs or evidence of any crime are found on them or their belongings.

The burden should not be on Charles to prove that his money is legitimate. In order to keep his money, the government should have to prove that Charles committed a crime.

Cash Seizures Skyrocket In America’s Airports And On Its Highways And Railways

Ordinary Americans like Charles are routinely asked if they are carrying any cash when they fly, drive or ride the train. As part of so-called “interdiction programs,” drug task forces aggressively use civil forfeiture to seize cash. For example, in August 2006, two professional gamblers had $97,000 of their seed money and winnings seized at the Atlanta airport by a Georgia police officer deputized as a DEA agent. ³ After hiring lawyers and documenting the legitimacy of the seized money, it still took seven months before the money was eventually returned.

Equitable sharing seizures involving the Cincinnati/Northern Kentucky airport police—just one of the nation’s many law enforcement agencies overseeing airports—have skyrocketed since the early 2000s. In the late 1990s, the agency took part in a couple dozen seizures per year. After the Civil Asset Forfeiture Reform Act of 2000, ⁴  seizures plummeted to almost none. But in 2013, the agency was involved in almost 100 seizures, totaling more than $2 million. ⁵

Equitable Sharing Seizures Involving the Cincinnati/Northern Kentucky Airport Police 1997-2013

Seizing Americans’ hard earned cash is not limited to airports. In late 2014, an investigative series by The Washington Post, “Stop and Seize,” revealed that since September 11, 2001, state and local law enforcement have made 61,998 cash seizures through so-called “highway interdictions,” totaling more than $2.5 billion—all without any search warrants or indictments. ⁶  “Stop and Seize” told the stories of many innocent Americans, including Mandrel Stuart, a 35-year-old restaurant owner in Virginia. ⁷  Police took $17,550 from Mr. Stuart during a stop for a minor traffic violation. Although he was never charged with a crime, Mr. Stuart lost his business before finally getting his money back after a victory in court.

And in a well-publicized incident in May 2015, the DEA seized $16,000 in cash from Joseph Rivers, a 22-year-old man who was switching trains at an Amtrak station in Albuquerque, New Mexico, while traveling across the county to produce a music video in Hollywood. ⁸  Like Charles, Mr. Rivers had his life savings seized and was never charged with any drug crime.

As these cases highlight, civil forfeiture incentivizes police to turn into profiteers.

The Legal Challenge

Law enforcement took Charles’ money because of a suspicion that it was the proceeds of drug sales, or that Charles intended to purchase drugs with it. The government has kept the money for more than a year without giving Charles the chance to explain where he got it. Until recently, Charles had to fight to get his money back without the benefit of a lawyer. Many civil forfeiture victims simply give up when they do not have representation. Often the amount of money or property that they are trying to get back is less than the cost of a lawyer. Charles was lucky enough to get free legal help for his defense, but most forfeiture victims are not so fortunate.

Allowing law enforcement officials to keep money they seize encourages them to target ordinary people who prefer to use cash. That is why Charles is teaming up with the Institute for Justice to defend against the unjust attempt to forfeit his money and to challenge law enforcement’s ability to fund itself through cash taken from innocent travelers.

Under federal forfeiture law, the government must prove by a preponderance of the evidence that Charles’ money has a “substantial connection” to a drug crime or is the proceeds of a drug crime. That means that the government must prove that it is more likely than not that Charles intended to use the money to buy drugs or earned the money from selling drugs. The government has no evidence to support this claim, even under this low standard

In addition to proving that Charles’ money came from legitimate sources and has no connection to drugs, IJ will challenge the constitutional deficiencies of the government’s civil forfeiture program to protect all Americans who choose to carry cash.

Under the U.S. Constitution, executive agencies like the Justice Department and the DEA are prohibited from funding themselves without the money being appropriated by Congress first. The Appropriations Clause of the U.S. Constitution states that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” ⁹  Federal forfeiture law, however, violates this provision by allowing law enforcement to retain forfeited property for use by law enforcement. ¹⁰

Unlike other self-financing agencies that collect fees or keep revenues from consumers, such as the U.S. Postal Service or Amtrak, there is no commercial market for civil forfeiture. There are no forces of supply and demand to restrict profits, like the amount of mail the Postal Service handles or the number of travelers purchasing tickets on Amtrak. Here, nothing constrains a prosecutor’s discretion to take property from citizens who are not even charged with crimes, except ethical and judicial constraints—how much a prosecutor is comfortable with seizing and how much a judge permits. Consequently, this scheme allows an executive agency to self-finance its own activities, which is exactly what the Appropriations Clause exists to prevent. So long as law enforcement has a financial incentive to seize as much property as possible, with few limits on how an agency can spend the proceeds, forfeiture abuse will continue. Forfeiture proceeds must go into a general fund, so that Congress can control how they are spent.

The Litigation Team

The litigation team consists of Institute for Justice Attorneys Darpana Sheth and Renée Flaherty and Institute Senior Attorney Scott Bullock. Christopher Wiest of Chris Wiest, AAL PLLC in Crestview Hills, Kentucky, serves as local counsel.

About The Institute for Justice

The Institute for Justice is the national law firm for liberty and the nation’s leading advocate for property rights. Charles’ case is the latest in IJ’s nationwide initiative to end civil forfeiture and shines a spotlight on cash seizures in airports. The Institute has fought civil forfeiture on behalf of the owners of the Motel Caswell in Massachusetts, ¹¹  the owners of Schott’s Market in Michigan, ¹²  the owner of a truck seized in Texas, ¹³  the owner of a restaurant in Iowa, ¹⁴  and convenience-store owners on Long Island ¹⁵ and in North Carolina. ¹⁶  In 2010, IJ published the landmark report on civil forfeiture, Policing for Profit, ¹⁷ and in 2015, IJ exposed the IRS’s abuse of structuring laws in Seize First, Question Later: The IRS and Civil Forfeiture. ¹⁸  For more information on IJ’s national initiative to end civil forfeiture, visit endforfeiture.com.