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
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.