This Week’s Civil Forfeiture Outrages (Ninth in a Series: Texas Edition)
There is a big difference between being accused of misconduct and a court finding of misconduct. Nonetheless, the recent accusations leveled against Nathan Johnson, the sheriff of Real County in south Texas, are jaw-dropping. According to investigators, Sheriff Johnson’s deputies have regularly been confiscating money from undocumented immigrants during traffic stops—even when those immigrants have never been accused of any crime.
One of the search warrants executed against Sheriff Johnson’s office and described in a news story from ABC25 reveals that, according to one of his deputies, “seizing currency from undocumented immigrants and the driver has been standard operation procedure as long as he has been employed by the Real County Sheriff’s Office.”
That warrant accuses Sheriff Johnson of felony-level theft—essentially because when government agents seize cash and vehicles without any suspicion of criminal conduct, that violates civil asset forfeiture law in Texas.
According to the warrant, Sheriff Johnson failed to carry out the established procedures for confiscating property. Instead, the warrant claims, he and his deputies repeatedly—and falsely—classified the property as abandoned or labeled it as evidence for potential future charges, even in cases where there was never a serious prospect that charges would actually be filed.
One traffic stop by Real County officers ended in the confiscation of $2,700 from the wallets of three immigrants, which was then marked as evidence because of the possibility of future charges of human smuggling against the driver. The other two men were referred to Border Patrol, where they asked what happened to their money. According to the warrant, the deputy who took the money couldn’t explain the basis of the seizure, only that Sheriff Johnson ordered him to take it.
Such accusations of official misconduct illustrate a larger problem—namely, the web of bad incentives that seizure and forfeiture create to focus on especially small forfeitures and especially defenseless victims. It should be no surprise that law enforcement officers who are given the tools of civil seizure and forfeiture tend to focus disproportionately on drivers with out-of-state plates—because it’s more expensive to pursue your rights in a faraway courtroom—and on small-dollar seizures—because it’s irrational to hire a lawyer just to get those small sums back. The seizure of cash from undocumented immigrants is a perfect symbol of the larger problem of perverse incentives.
Meanwhile, hundreds of miles north, Dallas police held a press conference about the now notorious six-figure cash seizure a month ago from an airline passenger at Dallas Love Field Airport. (Unfortunately, the Dallas Morning News story about the press conference is paywalled.) Last month, two police detectives seized $106,829 in cash from a traveler; the police department then bragged about it over social media.
Major Devon Palk, when discussing the seizure, said: “I will always take the opportunity to better explain not just to the [Community Police Oversight] board but to the public … so that we can be as transparent as possible.” But his actual explanation appears to be in some tension with this promise of transparency: Major Palk said that he couldn’t discuss the specifics of the seizure because it’s under federal investigation. This in itself is strange, because it seems unlikely that the transparency of departmental conduct would hinder a federal investigation of a seizure. However, it’s easy to imagine how the transparency of departmental conduct could embarrass the department: Any discussion of the circumstances that supposedly constituted probable cause for this particular seizure might be viewed by everyday Texans as alarmingly scanty. Even though several weeks have passed, the Dallas police department has steadfastly refused to reveal the facts that supposedly justified the seizure.
Major Palk also said that law enforcement officers “are not out here just taking money without probable cause” and that they would “immediately” return property taken if the investigation showed a lack of probable cause at any point. In light of the events described above, the most appropriate response may be “Tell me another one!”
