Judge Says DEA, TSA Can Continue To Be Sued For Stealing Cash From Airline Passengers

The DEA's love for taking cash from travelers has gotten it sued. Again. In August 2019, DEA agents -- working with TSA agents -- took more than $80,000 from Rebecca Brown, who was carrying her father's (Terry Rolin) savings through an airport on her way home to put it in a bank account he could use to pay for dental work and truck repairs.

Working under the assumption that the mere existence of cash is illegal, the DEA and TSA lifted the cash from Rebecca Brown, claiming it was "suspicious." A lawsuit followed in January 2020. Shortly after the filing of the lawsuit, the DEA agreed to return the $82,000 it stole from the retiree and his daughter.

The lawsuit, however, continues. The Institute of Justice is representing multiple plaintiffs who've had their cash taken by the TSA and DEA. This return of funds helps Rebecca and her father, but it doesn't stop the DEA and TSA from continuing to declare nearly any amount of cash "suspicious" before taking it from travelers.

Earlier this year, the magistrate judge [PDF] taking the first crack at the case recommended the agencies not be allowed to exit the lawsuit. The government argued the plaintiffs had no standing because traveling with cash is a personal choice -- one that can be made at any time to give rise to claims of possible future injury. Yes, it's a stupid argument. And here it is:

The Government Defendants do not dispute that injuries attendant on seizure of one’s person, effects or cash would be concrete and particularized, or that the prospect of such injuries would be redressible by injunctive relief. Instead, the Government Defendants argue that no injury to Plaintiffs is imminent or likely because Plaintiffs do not allege plans to travel with large sums of cash; and that Plaintiffs cannot “manufacture” standing by “choosing” to refrain from traveling with a large amount of cash.

But "choosing to refrain" would be the wise choice, given the government's predilection for taking cash from travelers without even bothering to conjure up credible probable cause. The court points out where the government's arguments go wrong, starting with the apparent pattern and practice of stealing cash from people passing through airports.

If we accept the premise (as we must at the pleading stage) that TSA and DEA have adopted policies or practices of seizing large sums of cash discovered in TSA screenings, then it is a reasonable inference that if Plaintiffs were to resume domestic air travel with large sums of cash, there would be an imminent, substantial risk that their persons, effects and cash would be subjected to seizure by the TSA and the DEA.

And that's not the government's dumbest argument. Here's the magistrate judge's appraisal of that one -- an appraisal that was presumably prefaced with a facepalm:

Finally, the Government Defendants argue that Plaintiffs’ choices to refrain from traveling with large sums of cash cannot be attributable to the TSA’s and DEA’s Seizure Policies, because the Plaintiffs were undeterred by those policies before they became aware of them. This is clearly a non-sequitur. It is hardly surprising that one would take steps to guard against a risk after, rather than before, becoming aware of it.

Love it. The government is basically arguing it should not be deterred from taking cash from passengers no matter what actions travelers take. Travel without cash? Well, you're just manufacturing injury. Travel with cash? Well, you're aware we might take it so you can't get all litigious when we do.

The government also -- unbelievably -- argued its own policies are unconstitutional. But, it claimed, the plaintiffs failed to prove these obviously unconstitutional policies exist.

The Government Defendants do not dispute that the Seizure Policies, if established, would be ultra vires and unconstitutional. However, they assert that the FAC does not plausibly plead the existence of such policies or practices under the standards of Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The Government Defendants characterize Plaintiffs’ allegations as “merely a conclusion – effectively, a recitation of the elements of Plaintiffs’ claim”; “at best, an ‘amorphous description’” of “actions by individual TSA screeners in particular cases” involving a “handful of individual travelers.”

Possibly, says the magistrate. But the plaintiffs have brought far more than conclusory arguments. From what's alleged, the TSA detains people who have "large amounts" of cash and the DEA is always on hand to swoop in and take it.

First, Plaintiffs relate dozens of incidents of travelers being detained by the TSA after completion of security screening, and/or then being detained by the DEA, for the purpose of seizing the travelers’ currency. That is more than a “handful”.

Second, Plaintiffs identify TSA Operations and Management Directives, Operating Procedures and other TSA documents that direct TSA Screeners who encounter travelers with cash in excess of $10,000 to investigate (“[c]onduct the procedures for checking travel documents”), to notify law enforcement, and to ask the travelers to “remain accessible”.

Third, Plaintiffs allege that in April, 2009 TSA stated on its website that passengers’ required cooperation with the TSA screening process includes “answering questions about . . . why they are carrying a large sum of cash”; that it was “standard practice for TSA Screeners to ‘ask a passenger who is carrying a large sum of cash to account for the money’”; and that such investigations for the purpose of “detecting ‘signs of criminal activity’” were among the “principal duties of TSA Screeners”.

Get all of that? Great, there's more. The plaintiffs are basically bouncing the DEA/TSA's lifeless head off the concrete at this point:

Fourth, Plaintiffs allege that the DEA runs a national interdiction program called “Operation Jetway” which seizes tens of millions of dollars per year from travelers at every major commercial airport, and which provides standardized training and data collection and analysis.

Fifth, the Plaintiffs allege that a 2017 Department of Justice Inspector General’s Report found that most DEA seizures reviewed were unrelated to investigations, posing a risk that DEA “is more interested in seizing and forfeiting cash than advancing an investigation or prosecution.”

And sixth, Plaintiffs allege that DEA interdiction agents have testified that they were trained by the DEA to regard travelers’ cash in excess of $5,000 as presumptively subject to seizure. Again, considering the factual allegations in the light most favorable to Plaintiffs, it is reasonably inferable that the DEA adopted policies and practices governing seizure of cash at airports, and that the DEA agents’ persistent practice of detaining travelers and seizing their cash based solely on its amount is consistent with and revelatory of the agency’s policy.

And so, given all the plausible allegations against the government, the magistrate recommended the TSA and DEA not be allowed to exit the lawsuit via their motion to dismiss. But -- as can be inferred from the title of the document -- it's only a "report" and (most importantly) "recommendation."

The good news is the federal judge handling the case has adopted the magistrate's R&R. As the Institute for Justice reports, the government will still have to deal with this putative class action lawsuit -- one that targets the DEA's well-known love of taking cash from people, as well as the TSA's aiding and abetting of this so-called legal theft.

U.S. District Court Judge Marilyn Horan yesterday rejected the government’s motion to dismiss the plaintiffs’ three class action claims. Those claims are 1) that the TSA exceeds its statutory authority by detaining travelers and their cash after the security screening has ended; 2) that the TSA violates the Fourth Amendment by detaining travelers and their cash without reasonable suspicion of criminality; and 3) that the DEA violates the Fourth Amendment by detaining travelers without reasonable suspicion and seizing their cash without probable cause.

More lawsuits for all involved! That's great news. If nothing else, it may force the DEA to reckon with its unjustified greed and the TSA to reckon with one aspect of its overall awfulness. And if everything goes right, it may provide another clip of judicial ammo to attack civil asset forfeiture.