by Mitch Kokai
Senior Political Analyst, John Locke Foundation
George Leef is no fan of civil asset forfeiture. His latest Forbes column highlights a case in which the federal government refuses to admit its misuse of the forfeiture process.
Congress passed the Civil Asset Forfeiture Reform Act of 2000 (CAFRA). Recognizing that these seizures were often wrongful and imposed unjust costs on people, the law provides for recovery of fees, costs, and interest by the “prevailing party.” Despite the clear intention to make people who have been harmed by unjustified seizures whole, government authorities often try to avoid paying them the rather small amounts of money they are entitled to.
This churlish attitude is displayed in the ongoing case of Lyndon McLellan, the owner of a small convenience store in rural North Carolina.
In July, 2014, IRS agents seized Mr. McLellan’s entire bank account, with $107,702.66 in it. The reason for the seizure? The feds thought that his frequent bank transactions involving cash amounts of just under $10,000 looked suspicious; he might be “structuring” his transactions to avoid the requirement of reporting transactions of $10,000.
That was enough for the IRS, and without any effort to find out why McLellan made these transactions or how he derived the funds, it confiscated his money.
Lyndon was not about to just wave good-bye to his life savings, however. He retained an attorney and paid an accountant to try to prove that he had done nothing wrong and should get his money back. With their help and an enormous pro bono hand from the Institute for Justice, the government has agreed to return that $107,702.66 to him. (For more about this outrageous case, see my Forbes article. Civil Asset Forfeiture Viper Bites NC Business Owner.)
But the government is trying to avoid making McLellan whole. When the US attorney handling the case offered to return the money, he also tried to get him to sign a document waiving his CAFRA rights to pursue full recompense – his lost interest and expenses for legal and accounting help. Lyndon declined to sign that document.
So the next day, the US attorney entered a motion in court to dismiss the case (officially named “United States of America v. $107,702.66 in United States Currency Seized from Lumbee Guaranty Bank Account No. 82002495”) without prejudice.
When a case is dismissed “without prejudice” by a court, that means that the government is reserving the right to re-open it at a future time. In other words, it isn’t really conceding defeat but declaring that the case is still technically open.