Will IJ’s Class Action Shut Down TSA’s Cash Machine?

The story of how the law as to civil in rem forfeiture came to be is apocryphal. It was formed largely in the 1980s, using the cute phrase, “take the profit out of crime,” and was directed at drug dealers. Everybody hated drug dealers, and so they not only had no qualms about it, but applauded it. After all, who didn’t support taking the profit out of crime?

Then the creep began. The presumption that money was dirty and there was no reason any “honest” person would carry any significant amount of cash, meaning it was entirely reasonable that possessing “too much” cash was obviously because it was criminal proceeds. What else could it be? Us normies kept our money in banks, used plastic to pay for things, didn’t need to walk around with bundles of cash. That was something criminals did, right?

And the courts developed a body of law around this presumption, finding it entirely reasonable to shift the burden from the seizing agency, whether local cops or feds, to the person who demanded their cash back to both initiate an action and prove the “innocence” of their cash. Notably, these were in rem actions, where the evil-doer was the cash, the “res,” which had no rights and was inherently forfeited to the sovereign, since no one has the right to the return ill-gotten gains.

That there was no crime to be found, no person to be prosecuted, was irrelevant to the law, even if it made sense to rational people. Just because the perp did a good job concealing the offense that bore this cash didn’t mean he got to keep the evil cash, itself proof of criminal proceeds because it was cash. And the law presumed only criminals carried cash.

Putting the many variations of this theme aside, the situation at an airport created the potential for the Transportation Security Administration to serve double duty, first as a putative screener for items that might compromise safety on a plane, and second as another government cash machine. They got to x-ray people, and guess what that meant?

180. Currency is not a weapon.
181. Currency is not an explosive.
182. Currency is not an incendiary.
183. Currency is not a threat to transportation security or air travel safety.
184. Air travelers carrying large amounts of currency do not, on that basis, present any
threat to transportation security or air travel safety.

The non-profit Institute for Justice, which has been doing exemplary work defending against government seizures and forfeiture, has filed a class action against the TSA and DEA for airport seizures. Notably, the TSA is not a law enforcement agency, and its employees have no law enforcement authority or duties.

190. TSA admits that “[t]raveling with large amounts of currency is not illegal,” and that
the only relevance of currency to transportation security screenings is that “[l]arge amounts of
currency (‘bulk currency’) can . . . conceal a weapon, explosives, or other items that may pose a threat to transportation security.” TSA Operations Directive 400-54-6 (Oct. 29, 2009).

191. Accordingly, “large quantities of currency discovered at the checkpoint, either on
a person or in accessible property, may need closer examination to ensure prohibited items are not secreted and to clear the person or property to enter the sterile area.” TSA Operations Directive 400-54-6 (Oct. 29, 2009).

Who wouldn’t find it reasonable to check for a gun hidden inside a $100 bill? But the point is that cash is outside their scope of concern, beyond it concealing a weapon. So what do you do when you have folks in blue shirts with x-ray machines spying wads of presumptively evil cash right in front of them?

198. Because of the limits of their statutory authority, if TSA Screeners encounter potential contraband or potential evidence of a crime unrelated to transportation security, they are supposed to notify law-enforcement personnel rather than seize the property or personally
investigate.

So they “temporarily” seize the cash, along with a traveler’s bags, often telling them they’re free to go, just without their possessions, and then give a shout to their pals in law enforcement. The DEA has even given it a name, “Operation Jetway.”

232. Upon information and belief, DEA agents participating in Operation Jetway airport interdiction operations at U.S. airports follow a DEA policy of seizing any currency
found that totals more than $5,000.
233. Upon information and belief, DEA follows a policy or practice of seizing currency from travelers at U.S. airports based on the presence of a threshold amount of currency that DEA
considers “suspicious,” regardless of whether there is probable cause.
234. Upon information and belief, DEA follows a policy or practice of seizing currency from travelers at U.S. airports based solely on whether they have at least $5,000, regardless of
whether there is probable cause.

It’s not merely fortuitous that the law enforcement agency in the lead of saving the nation from evil cash happens to be the DEA, as forfeiture grew out of our national fear of drug dealers and was grounded in the underlying assumption that only drug dealers carried around large sums of cash because they were making tons of illegal proceeds and couldn’t put it in the bank, like good hard-working Americans do. Except when they don’t.

Thirty years ago, civil in rem forfeiture cases were largely fought by a handful of lawyers on behalf of individual claimants. It was an expensive and onerous process, particularly in the beginning when claimants were required to post a 10% bond before being “entitled” to proceed. Even so, the cost of instituting a federal suit against the DEA for a forfeiture made most actions cost prohibitive. What was the point of spending $50,000 in legal fees and expenses to take the chance of getting back $50,000?

That the Institute of Justice is bringing this action, having class representatives reflecting the grievous error of the underlying assumption that only criminals carry cash, means there may be hope of ending this blight. Carrying cash isn’t a crime. Carrying cash doesn’t mean the government gets to seize it and make you prove the legitimacy of your right to it. And the TSA cash machine by collateral virtue of its authority to check your bag for cash has exacerbated the problem and put ordinary folks who travel with cash, for whatever personal reasons they have, at risk of governmental theft of their cash.

It was like this 30 years ago, but the fear of drugs clouded the public perception of nice ordinary folks being stripped of their cash. Better that grandma lose her life savings than a drug dealer make a profit. At least now, there’s a chance of changing decades of bad law and outrageous conduct by the government. At least now, the Institute of Justice exists to fight the good fight.

14 thoughts on “Will IJ’s Class Action Shut Down TSA’s Cash Machine?

  1. Bear

    In 2012 I needed to travel to NYC and unfortunately I experienced “suspected identity theft” and my credit cards and bank accounts were frozen. I planned on wining and dining some clients and seeing some old friends who I hoped would let me pick up the check. I was also staying at a very nice hotel and needed to be able to pay for that as well as do some shopping for SWMBO.

    This all adds up obviously and I took close to 20k with me for a 7 night stay. Stupidly I didn’t figure on the commotion this would cause at SFO. TSA was very concerned why I had “so much” cash and called in DEA. But luckily (after a couple of hours of questioning and missing my flight) they grudgingly let me go.

    And yes, if they had seized the cash I doubt it would have made economic sense to go to court. But I would have, because I’m stupid (as I said) and stubborn.

    1. SHG Post author

      There are tons of stories, even back in the bad old days, of people having cash for reasons that made perfect sense for them. But most weren’t as fortunate as you, particularly when they weren’t such upstanding citizens, and so their cash was seized and they were left high, dry and empty handed. Most weren’t in a position to pay to fight and so they walked away, not because they were wrong but because the cost/benefit analysis made it untenable.

      And nobody other than the handful of lawyers doing forfeiture work cared, because drugs.

      1. Bear

        I realize and realized how lucky I was. Some of that good fortune was probably because I was well dressed, oldish, respectful, had no criminal record and was white.

        Good luck to IJ.

        p.s. When I got to my hotel my accounts had been unfrozen. It was just a “mixup.” That kind of mixup and the government’s assumptions and actions were undoubtedly devastating to others.

          1. Noxx

            Far different outcome for the less respectable looking. 1991, Border Patrol at Yuma seized 8K (a years tuition at WNMU) from me while I was a kid driving a shitbox VW to college. Still a significant chunk of change, at the time it was every nickel I had. The legal machinations of seizure are difficult to parse through a lifetime of outrage.

  2. Skink

    Late last year, a law enforcement client asked me to cover a forfeiture hearing because no one else was available. It was something I had never done and never considered doing. The guy got caught with a stolen motorcycle, and a search of his house found some other stuff and $50,000 in cash in a safe. They took it; the hearing was to see if they could keep it. I was told no one really gave a shit if I lost the hearing because $50K meant nothing compared to a few hundred million budget. It was for show–“we’re doing something.” I considered it stupid lawyer shit, but I got paid to do it. His lawyer knew what he was doing; I didn’t. I got his cash, but felt stupid. So much for competence.

    A month later, off to Las Vegas. I usually grab cash when I get there, but I decided to take five packs of twenties. That aroused the clerks with the magnetometer. They asked why so much cash. I told them I might have to tip someone. They said they could take it. Maybe so, I told them, but it would be stupid. I kept thinking about that dopey son-of-a-bitch without his $50K. So I told them to open my wallet. Prominently displayed were two things: my Bar card and an ID from one of my agency clients.* As they gave me my wallet and cash back, I was asked why I didn’t tell them I was law enforcement. I told them the ID was a fake. They didn’t know what to do with that information.

    If no one cared about the hearing compared to a few hundred million budget, what are the odds TSA cares about what it grabs? It can’t really be a meaningful source of income, so is it just to show they’re doing something?

    *The card has my pitcher and everything! When it was given to me, I was told I could drive as fast as I want. So far, so good.

    1. SHG Post author

      Be careful about one guy saying it doesn’t matter to tens of millions seized. One dead guy is a tragedy. A million is a statistic. In the aggregate, forfeiture is big money. Even in smaller numbers, it’s the price of a new MRAP and a great party for a small police department. They care, even if they can afford to lose a few cases of free money here and there.

      As for your cop ID, that’s a very different bone of contention, and one that opens a very sore wound. Quis Custodiet Ipsos Custodes.

  3. Howl

    “Yes, as through this world I’ve wandered
    I’ve seen lots of funny men;
    Some will rob you with a six-gun,
    And some with a fountain pen.”

  4. David

    CBC (Canadian Broadcasting Corp.) published an article about this nation wide a few year’s ago. It advised never to carry cash when visiting United States. It’s pretty bad when your closest neighbour calls your law enforcement agencies thieves on national news. Article is called “American Shakedown”. (Link not posted as per website policy)

  5. Anthony Kehoe

    Over Christmas I got myself a present of a 2007 BMW R1200RT used for $5,900. Since it was over craigslist I paid in cash. I had so many problems trying to use Shared Branching from my WI credit union (I live in AZ) as they wouldn’t give customers more than $2,500 a day. Luckily I keep cash at home as part of my emergency fund. There is a war on cash because only criminals would have a problem with their financial affairs being tracked. Sure, the limit for “structuring” is $10,000. But do you really think they limit themselves to only collect data over that threshold? In this day and age of big data?

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