As a trucker has shown us, civil asset forfeiture is wrong

You may have been following the legal odyssey of the North Carolina small-business trucking company owner whose cash was seized when he flew to Phoenix to buy a used truck. They confiscated it through civil asset forfeiture. The good news is that Jerry Johnson, owner of Triple J Logistics, has gotten his $39,500 back.

The bad news:

• It took more than two years to get it back.
• It took at least two judicial assaults to accomplish it.
• Arizona prosecutors would not pay for legal expenses and paid less than 1% interest on the money.
• Johnson missed out on buying a truck because used truck prices had increased dramatically since his 2020 attempt to buy another one.

Here’s the March 22 LandLine.Media story about Johnson getting the money back.

There is more bad news. The problem is much bigger than a truck company owner wanting to buy a truck, which has been our focus.

It was a libertarian-leaning public interest law firm that appealed the civil asset forfeiture of Johnson’s money. That law firm, the Institute for Justice, also is involved in litigating a separate class-action lawsuit on behalf of people whose cash was seized by the Drug Enforcement Administration at airports.

It has happened more than we might realize. Many civil asset forfeitures have started with money seized at airports. In 2016, USA Today reported the DEA has seized more than $209 million from at least 5,200 travelers in 15 major airports over the previous decade.

As the Institute for Justice notes, although travelers may be told by government authorities that there are no legal restrictions on flying with cash, reality is different. TSA screeners will often detain travelers with large sums of cash and turn them over to law enforcement.

That is what happened to Jerry Johnson. Law enforcement decided the money smelled like marijuana and seized it.

They insinuated he was laundering money from illegal drug activity. Eventually, after a long interrogation, the officers gave Jerry a choice: sign a form on the spot agreeing to hand over the money or be arrested.

He was never charged with breaking any law, much less was he convicted. Instead, law enforcement authorities deemed the money itself guilty.

I imagine everyone reading about Johnson’s travails thinks the government was wrong to take his money and then put up a fight to keep it.

They fought despite the state legislature taking notice of the unfair statute and changing it to discourage the practice.

Yes, shortly after Johnson’s money was seized, Arizona’s civil forfeiture laws were reformed to require a criminal conviction. But Johnson’s money was seized under the old laws, and prosecutors kept a white-knuckled grip on it.

Prosecutors didn’t like his explanation of where he got the money, from his savings (Johnson didn’t keep it in a bank) and a loan from his uncle. They said he couldn’t prove it was his.

Judges were openly disdainful of the Maricopa County attorney who argued before the Arizona Court of Appeals that the state should be allowed to keep the money.

Were they going to come after the money in his wallet, Judge Peter Swann asked. Would he have to explain how he got it?

The appeals judges were critical of the Maricopa County attorney’s comments about the ownership of the seized money during the Nov. 9, 2021, oral arguments before the Arizona Court of Appeals.

“The state argues that Johnson failed to prove ownership, but if it is not Johnson’s money, then whose money is it?” Swann wrote in the decision. “The state failed to introduce any evidence of who owned the money.”

That decision was not to give the money back to Johnson, but only that Johnson could continue to fight in court to get it back. That was back in November 2021. There was still more than a year to go before he got the money back.

Policing for profit

The Institute for Justice calls it “policing for profit.” Law enforcement officers and prosecutors in 43 states get to keep half to all of the proceeds taken through civil asset forfeiture, it reports. Here the organization rates state laws regarding civil asset forfeiture.

In states where there are laws that limit civil asset forfeiture, there is a federal program called “equitable sharing.” That is where, by collaborating with a federal agency state authorities can move to forfeit property under federal law. That way, they can get up to 80% of the forfeited proceeds.

And there is no “guilty until proven innocent” getting in the way. The burden of proof is on the unconvicted owners to prove they are innocent and should get to keep their money.

It would be nice if federal law could be changed to stop civil asset forfeiture. I say “nice,” but what I mean is “right.” However, the prospects seem bleak to me.

The Fifth Amendment Integrity Restoration Act was introduced in the U.S. House and Senate in 2017 to curtail civil asset forfeiture, but it died in committee.

Since then, we can count many, many distractions. Just because something is wrong doesn’t mean it is easy to stop it. LL

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