Civil asset forfeiture became a triggering topic for some of us when the case of Jerry Johnson came to our attention.
He is a small-business trucking company owner whose $39,500 was seized as he traveled to buy a truck at an auction. It took two and a half years for him to get his money back. It took a few more weeks to get interest and to be eligible to be compensated for attorney’s fees.
Without the nonprofit, public-interest law firm Institute for Justice fighting on his behalf, he may not have ever gotten his money back.
PrePass
This is a time when the axiom “there but for the grace of God go I” floats up to conscious thought. With it, how can I avoid something like this happening to me?
Recently, the Competitive Enterprise Institute distributed a report titled “Five Myths of Civil Forfeiture, Second Edition.” It is a nonprofit libertarian think tank based in Washington, D.C. Its website says it fights for “less regulation, more freedom, and fairness for all.”
The five asset forfeiture myths, in short:
Cash seizures, which become forfeitures, typically consist of hundreds of thousands of dollars. This is not true. A typical cash seizure and forfeiture ranges from several hundred dollars to several thousand dollars.
When property is seized, the owner has access to the courts to recover it. There is a very high rate of default judgments in forfeiture cases, where the person whose property was seized didn’t attend the court proceeding. This shows that property owners actually have little access to the courts for redress.
Seizure and forfeiture take place in accord with due process of law. There are problems. A big one is that due process is often short-circuited because the cost of hiring an attorney to fight to get the money back often is more than the amount seized. Spending $2,000 to get back that amount or less isn’t cost-effective.
Our justice system requires high standards of proof of wrongdoing for seizures and forfeitures to occur. In fact, money and property can be seized and forfeited to the government with little evidence, and the burden of proof is on the person wanting their property back, not the government.
Injustices caused by civil forfeiture can be addressed by requiring a conviction in criminal court as a prerequisite to forfeiture litigation in civil court. The institute argues that conviction prerequisites that some states have enacted are essentially ineffective.
For a deeper dive, read the report here.
OOSI Truck Insurance
Circumventing problems
Jerry Johnson’s case was extraordinary for a couple of reasons. First, it was nearly $40,000 that was seized, not just a few hundred or a couple of thousand dollars. Second, he flew to Phoenix, into the waiting arms of Transportation Security Administration at Sky Harbor International. Third, he got it back.
Yet, as long-haul truck drivers know, their situation is different than most people’s situations. Truck drivers are more exposed. The cab is their living quarters on the road.
There are measures a trucker can take to avoid problems, however. At the root of these suggestions is the bedrock assertion that it is best to not give any reason for an officer to seize cash or other property.
Hino Emissions Class Action
First off, remember that a law enforcement officer is allowed to ask civilians questions and to draw reasonable conclusions about anything in plain view.
Also remember that an officer who has reason to believe a civilian is carrying a weapon or has one close enough to grab is allowed to search the civilian or parts of the vehicle to ensure officer safety.
What to do to avoid seizures
These are things you can do to reduce risk of seizure of property during a roadside stop. Many of these suggestions are from another Competitive Enterprise Institute report. It is titled “They’re Taking My Stuff!” Read the full report here.
If you are stopped, for whatever reason, be polite to the police. Do not smirk or smile. Don’t make playful or flippant remarks. Be civil, somewhat formal, dead serious, and speak as little as necessary. The more you talk, the more likely it is that you could say something that could create reasonable suspicion in the mind of the officer. However, complete silence can also raise suspicion.
When you are carrying out any order, it is best to do it slowly and deliberately. If you are asked for your CDL, registration, proof of insurance, ELD, you must comply, but reach for them and hand them over slowly and deliberately. If you need to reach into a glove box or reach to your back pocket, it could alarm the officer. It might be wise to preface your actions by telling the officer what you are doing
Have nothing in plain view that could raise concerns about illegal conduct or officer safety. Have no empty beer cans in the cab. Keep booze and any drugs (recreational or prescription) stowed away out of sight.
If you carry a gun or other weapon, keep it stowed and out of sight. Any gun or anything that can be used as a weapon in plain view where it can be grabbed and used is a threat to the officer. That includes a hunting knife, a legal firearm, ammunition, a heavy flashlight, or other large, blunt instrument in the passenger seat. These items are an invitation for an officer to search all of the areas of the car from which a driver or passenger could grab a weapon.
Do not leave cash or valuables out or carry more than is necessary on you. If an officer decides to search for weapons, they will find the cash or valuables, and they could be seized. Stow extra cash in a locked case or storage cubby.
Cleanliness and grooming
Keep your car clean and reasonably empty. The more stuff that is in your cab, the more likely it is that the officer will see something to investigate.
This also extends to unusual smells. Going overboard on air fresheners could encourage an officer to believe something needs further investigation.
Keep your dress and grooming conventional and, ideally, boring. It is possible that law enforcement officers will draw conclusions about you based on your appearance. To the extent possible, your appearance should give the officer as little as possible to think about.
By maintaining your cool and taking these precautions, perhaps your cash or property won’t be seized and the forfeited to the state. With luck, you won’t be one of the “there but for the grace of God go I” cases. LL
