Must We Be Submissive to the Cops?

CEI has just published my paper “They’re Taking My Stuff!”: What You Need to Know about Seizure and Forfeiture.” My interest in this topic is driven by a simple fact: The law of seizure and forfeiture in the United States presents a clear and present danger to property rights.

Current law allows billions of dollars in cash and other property to be seized from members of the public every year; much of this seized property is eventually forfeited to the government. These seizures and forfeitures rarely require proof of criminal conduct; rather, they often rest only on the suspicion that the property possessor has committed a crime. Indeed, a central criticism of seizure and forfeiture practices today is that they sometimes result in the confiscation of property held by innocent, law-abiding citizens.

One of the most important parts of the paper consists of a departure from CEI’s typical method of operations. As a rule, the guidance that CEI offers is primarily directed at policy makers. However, the central portion of “They’re Taking My Stuff” consists of guidance to the public. More precisely, it sketches out an answer to the question: What should the U.S. traveler do to reduce the chances of having property seized and forfeited to the government?

The paper provides my best answer. I can’t summarize the entirety of my guidance here (read the paper!), but I write here to flag one portion of my advice that some will find controversial: Up to a point, and in certain particular circumstances, the traveler who is carrying valuable goods (say, several hundred dollars in currency) is best advised to adopt a posture of politeness, compliance, and even (to some extent) submissiveness toward authority.

This advice might not be appreciated by some part of CEI’s audience who place a high value on norms of individual freedom and limited government (I am a member of this group). “Isn’t it unwise,” some might say, “to counsel others to show deference to government authority? What about my God-given right to mouth off to or otherwise show disrespect to the government? Isn’t it just a little un-American to advise others to suck up to cops?”

I want to speak to these concerns by, first, recalling two maxims. When I was a child, I heard a family friend say something that I didn’t understand at the time: God said take what you want, but pay for it. I think there is a modern version of this saying as well: Play stupid games; win stupid prizes.

I take the upshot of these maxims to be that different people will have different goals at different times. In particular, and in the context of the matters discussed above, the goals of travelers will vary. One kind of goal will be based on the outside world. This goal is held by those whose overriding desire is to go from one place to another with their property intact. This goal implies that the actions of the traveler should be aimed at minimizing contact with law enforcement officers and deterring searches that might lead to seizure or forfeiture.

However, another kind of goal may be based on internal psychological satisfaction. This goal may best be satisfied by expressions of autonomy, such as, for instance, displaying a lack of deference to authority.

The traveler who is motivated by this second kind of goal is well-advised to consider the implications of a central fact of police work: The exercise of police authority is often discretionary. Every American has the God-given right to speak disrespectfully when detained by a law-enforcement official. Nonetheless, this behavior has implications—given the right circumstances, every law-enforcement officer has the government-granted power to initiate and expand the scope and length of any investigation. Furthermore, the officer has discretion in other areas as well, such as  the choice of whether to issue a warning or a citation.

This means that a motorist who is detained, and who anticipates the possibility of a search that might lead to seizure and forfeiture, has some ability to control that situation through his or her own choices. The motorist who wishes to surrender this measure of control by exchanging it for some degree of internal psychological satisfaction—through, for example, a sharp exchange of words with an authority figure—has chosen to win at one game, but perhaps at the cost of losing at another.

The upshot of all of this is that, in the world of the current law of seizure and forfeiture, the traveler is sometimes best advised to adopt a posture of deference toward public employees who are supposed to be in the business of protecting the rights of the people.

There may be some who differ with my paper’s advice about the best way to deal with a law-enforcement official who is detaining you. Those critics’ hearts are in the right place. They are right to be concerned about two erosions that the current law of seizure and forfeiture create—erosions of property rights and erosions of cultural norms of individualism and independence from government. Of all the many outrages created by the sordid world of seizure and forfeiture, this particular outrage is perhaps the most dangerous.