“Civil asset forfeiture” is a legal framework that allows the government to take money or other assets that it has probable cause to believe are connected to a crime. The problem, of course, is that it’s up to cops on the ground to say whether they have probable cause or not, and then it’s on you to fight to get your property back — precisely backwards from what it should be.
Unlike criminal forfeitures, civil forfeitures require no one to be convicted — or even arrested for — a crime. Surely there are some instances where this allows the government to legitimately take property from drug dealers or others where the property is obviously criminal proceeds but they can’t nail down an individual to send to jail. But the reality is that this enables law enforcement laziness, where field agents act on a hunch, without serious regard for whether the money is actually criminally-connected or not, often times earning their agency a commission, and massively screwing over innocent people left and right. And sometimes, those involved act in bad faith.
Keddins Etienne, who asked me to share his story, was traveling through JFK airport in New York just before the pandemic erupted with $70,000 cash. He was traveling on domestically, and there is no limit to how much cash you may travel with or requirement to declare cash in any amount unless you’re leaving the country. Etienne works as a film maker, an industry that for smaller productions often pays staff in cash, and the funds were needed for an upcoming production. There was literally nothing to see here.
But, TSA spotted the cash while x-raying his bags and reported their findings to the DEA. DEA agent Antonio LoGrande stopped Etienne, questioned him for several minutes, and — apparently unsatisfied — LoGrande walked away with his cash.
Now, carrying cash, in any amount, is not probable cause that the cash is connected to drugs or some other criminality. Nor is doing so at an airport, nor is not being able (or willing) to justify yourself to some DEA thug. But, Etienne left the airport that day with $70,000 less than he came in with, in exchange for a slip that basically says, “We jacked your cash, if you want to see it back, here’s how you can fight for it.” Except they use important-sounding but actually quite silly language like, “To request a pardon of the property…”
One shouldn’t have to request a “pardon” for their own innocent funds, but regardless, Etienne did just that. He retained me as his attorney, and I submitted the claim forms to seek return of the cash. Then, something even more curious happened: an attorney for the government, Assistant U.S. Attorney Claire Kedeshian, contacted me and attempted to get me to “settle” the matter by accepting only part of the cash back, as if this were some kind of breach of contract or negligence claim that the parties should negotiate. Ms. Kedeshian advised me by phone that failing to settle might result in additional liability — even criminal liability — for my client, and that they had evidence that he was involved in “structuring” (the crime of depositing or withdrawing large amounts of cash from a bank a small amount at a time in order to avoid federal reporting requirements that trigger with individual transactions of $10,000+).
But, a review of my client’s bank statements showed nothing of the sort: they entirely made up that accusation in an attempt to strong-arm him into settling. I advised them that return of his cash was non-negotiable — return every dollar or see you in court — and that their methods were disgusting. And so we waited for months until the deadline set by law for them to either return the money or start court proceedings arrived, and about 2 weeks before the deadline, they sent us a note saying they would return the money, with no further explanation. Total time from seizure to recovery of funds was about 8 months.
It seemed to me that the wrong done to Etienne was not fully addressed by simply returning his money. So we filed Etienne v. U.S., Case No. 21-CV-613 in the U.S. District Court for the Eastern District of New York, alleging unlawful search and seizure, as well as abuse of process (New York’s civil-context version of malicious prosecution). The case was assigned to a judge who requires a pre-motion conference before filing motions, and the government asked for such a conference on a motion to dismiss. A DOJ attorney got up before the judge and explained the basis for its motion: that carrying that amount of cash through an airport constituted at least “arguable” probable cause sufficient to grant qualified immunity to the DEA agent. The judge made clear that he was not impressed and ordered the parties to mediation. In August, an agreement was reached, and the government paid my client an additional $15,000 for his troubles. The money was finally received last month.
Things ended well for my client, but the taxpayer is out $15K plus probably tens of thousands of salary dollars to the DEA agent and several attorneys who wasted their time trying to backwards-rationalize the seizure of an innocent man’s money. And I wonder how many innocent people just don’t have the will to fight and lose some or all of their money? Those who study the matter suggest that $3B per year is seized through civil forfeiture. So perhaps the government just thinks of the $15K they paid my client as a cost of doing business. It would be nice to see the Department of Justice return to acting in the interest of justice rather than running rackets like this.Etienne v. U.S. – Complaint (.pdf)