Patrick Carroll
– December 5, 2021
@ America Institute for Economic Research
When Kermit Warren and his son Leo lost their hotel jobs in mid 2020 as a result of COVID-related layoffs, things were not looking great for them. Though they had some money saved, they needed to find new jobs quickly in their hometown of New Orleans before their money ran out. Fortunately, Kermit had a longtime side gig of hauling scrap metal, and they decided to turn it into a full-time, father-son enterprise.
To scale up their new venture they needed a bigger truck, and they eventually connected with a seller in Columbus, Ohio. So in November 2020, they booked a flight to Columbus, planning to drive the truck back after buying it. Kermit was carrying roughly $30,000 in cash—his life savings—since he was planning to use the cash to buy the truck.
Unfortunately, the trip didn’t go exactly as planned. First, since they were inexperienced travelers, they mistakenly flew to Cleveland. Then, after the two-hour drive to the seller’s lot in Columbus, they found that the lot was closed, and with no motels in the area and no car, they had to spend the night outdoors in the cold.
Early the next morning they were able to look at the truck, but they realized it was too big for their needs, so they went to the Columbus airport and booked flights back to New Orleans. The TSA raised some eyebrows when they discovered Kermit’s cash, but they let him go without any hassle. Kermit and Leo proceeded to their gate and waited for their flight to board.
That’s when agents from the Drug Enforcement Administration (DEA) showed up, having been tipped off by the TSA.
Suspicious of drug trafficking, the DEA began questioning Kermit about the cash. Kermit and Leo tried to offer evidence of their truck purchasing plans, but the agents were becoming increasingly hostile and refused to review the evidence. Panicking, Kermit lied by telling the agents that he was a former cop, hoping that would deter them. However, with more questioning, he quickly admitted the truth, and in hindsight he realized that his lie was a mistake and lapse in judgement.
Even more suspicious after the lie, the DEA took all of Kermit’s money, despite having no evidence the cash was connected to criminal activity. Kermit and Leo then returned home with no truck and no cash.
Six months later, the government filed a civil forfeiture complaint in federal court, which would let them keep the cash permanently because they suspected the money was involved in a drug crime. Though Kermit was never charged with a crime, let alone convicted, the burden was now on him to prove his innocence if he ever wanted to get his money back.
Fortunately, the Institute for Justice (IJ) agreed to represent Kermit back in August, and they documented the legitimate purpose of his trip. Finally, on October 29, IJ announced that prosecutors had agreed to dismiss the case with prejudice (permanently). After 11 months, Kermit would finally be getting his money back.
“I’m relieved that I will finally get my hard-earned savings back after a year of suffering,” Kermit said. “But what happened to me was wrong. The officers and prosecutors treated me like a criminal when all I was trying to do was improve my business and my life. For a year, they’ve left me struggling to survive a pandemic and a hurricane without my savings.”
IJ Senior Attorney Dan Alban also commented on the good news. “We’re relieved that Kermit is getting his hard-earned money back, but it’s outrageous that he was left destitute for an entire year for no good reason due to the callous, profit-driven actions of DEA and federal prosecutors,” he said. “Kermit’s case highlights how the federal government abuses civil forfeiture. It seizes cash on the flimsiest of pretexts—traveling with cash at an airport—and effectively forces people to prove their own innocence to get their money back. And even in a best-case scenario, it can take over a year for them to get their property back.”
Guilty Until Proven Innocent
Sadly, Kermit’s experience is not uncommon. Every year, thousands of Americans have their cash and other assets seized through civil forfeiture, and many never get their money and property back.
What’s more, forfeiture has been increasing in recent years. In 2001, civil and criminal forfeitures brought in a combined $473 million in revenue, but in recent years that number has been consistently over $2 billion, largely driven by an increase in civil forfeitures.
Airports seem to be particularly lucrative locations for this practice, as Kermit’s story highlights. Indeed, an investigation by USA Today found that DEA units in 15 of the nation’s busiest airports seized over $209 million in cash from at least 5,200 drug suspects from 2006 to 2016.
But while the expedience offered by this practice may be alluring, the reality is that civil forfeiture is fundamentally unjust and has no place in a free society. For one, most of the “crimes” that are targeted with this practice, like drug trafficking, shouldn’t even be considered crimes in the first place. Second, this practice effectively turns the presumption of innocence on its head, forcing people to prove that they did nothing wrong if they ever want to get their property back. And third, civil forfeiture encourages “policing for profit,” whereby the legal system is used to raise revenue for police agencies rather than fight crime.
Legal Plunder
Writing in his 1850 treatise The Law, Frédéric Bastiat commented on these kinds of practices. In particular, he noted the irony that while the law is supposed to uphold property rights, it’s often used to violate them.
“Under the pretense of organization, regulation, protection, or encouragement,” Bastiat wrote, “the law takes property from one person and gives it to another.” Bastiat called this practice “legal plunder,” since it’s essentially a form of theft that is authorized by the law.
“But how is this legal plunder to be identified?” Bastiat continued. “Quite simply. See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime.”
The point is, government agents should have no more rights than any other citizen. If they forcibly take money or property that isn’t theirs, they have committed theft. And theft doesn’t become okay just because it’s done by someone with a badge and a uniform.
Sadly, the laws that currently exist endorse this double standard on morality. Government agents are allowed to steal with impunity, even though ordinary citizens would be rightly prosecuted for the same actions. As a result, the world we live in is a world of precarious property rights, one where innocent people like Kermit Warren are regularly victimized by law enforcement agents.
It’s a harsh reminder of just how far we still have to go in the fight to defend civil liberties.
Reprinted from the Foundation for Economic Education
Patrick Carroll
Patrick Carroll has a degree in Chemical Engineering from the University of Waterloo and is an Editorial Fellow at the Foundation for Economic Education.
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