This Week’s Civil Forfeiture Outrage (Eleventh in a Series: Highway Robbery in California)

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The bandit is the scourge of the traveler. In less developed parts of the world, travelers risk encountering bandits even today. Sometimes the bandit claims that he’s in charge of the road that the traveler is on or that he’s licensed to collect a toll. Sometimes the bandit discards the pretense of legality and insists on taking whatever the traveler is carrying.

You don’t see a lot of bandits in developed countries; one of the many consequences of the development of the rule of law is the banishment of banditry. But in California, it looks like the roads there aren’t entirely bandit-free.

Over the past year, Empyreal Logistics, a national armored car company,  has been the victim of highway robbery three times. Empyreal’s job is to transport cash safely, and one of the jobs it does is to deliver money from marijuana businesses, which are legal under state law, to banks. Apparently, however, there’s a developing trend. San Bernardino County sheriff’s deputies apparently are now pulling over Empyreal’s armored cars, taking the money from the drivers, and attempting to use the money to supplement their own budgets. I wrote about this when police took $165,000 in cash from an armored car in Kansas last year. Now this practice has spread to California, where sheriffs have seized another $1,050,000.

Showing that the law enforcement officers who have seized money from armored cars are acting within the law is an uphill battle. It’s perfectly legal under state law to transport money that arises from legal marijuana businesses. Federal law prohibits federal agents from interfering with medical marijuana operations. However, the powers of California’s law enforcement officers to seize cash springing from recreational marijuana businesses are more indistinct.

In any event: Empyreal sued, ably represented by the Institute for Justice. Empyreal’s filings suggest that the traffic stops its drivers endured had less to do with minor moving violations and more with revenue enhancements for the sheriff’s department. There is circumstantial evidence that the sheriffs have surveilled and targeted Empyreal’s drivers. One stop occurred because an Empyreal driver was allegedly following another vehicle too closely. Another stop occurred because the driver allegedly “slightly exceeded the speed limit and prematurely activated his turn signal.” No traffic citations for these alleged violations were ever issued. The cash from these two armored car stops added up to over $1 million, which has now been transferred to agents of the federal government. If the federal government succeeds in taking ownership of it permanently through forfeiture, it will then kick back roughly 80 percent of the money to the California law enforcement bodies that originally seized it.

Empyreal also requested a temporary restraining order to prevent law enforcement officers from stopping its armored cars without particularized suspicion or probable cause, extending the duration of stops without probable cause, searching Empyreal’s cars or personnel without probable cause, or seizing Empyreal’s property or possessions without probable cause. The judge denied the motion, noting that Empyreal “may well have an excellent case on the merits,” but that a temporary restraining order would require that Empyreal demonstrate that it was likely to succeed on the merits, which at this early stage of the litigation it could not do. In its denial of the motion, the court appeared to grant significant weight to the possibility that some of the marijuana businesses that Empyreal served were not medical marijuana vendors and therefore not protected under federal law—a fact that might ultimately jeopardize Empyreal’s case.

I’m not sure that such reasoning in the court’s denial of the temporary restraining order is especially convincing. If you can show that the government is regularly or routinely acting unconstitutionally, shouldn’t that be enough for a temporary restraining order? Should you really have to show that the government is acting unconstitutionally in every instance and every aspect of its interactions with you? The cash that was seized wasn’t mixed together; it had been separated into different sealed bags, each labeled by the dispensary that had packed the bag with money. It would therefore be difficult under these circumstances to demonstrate that an illicit source of money somehow contaminated a lawful one. But I don’t wear the black robe, so I don’t get to make those decisions.

Empyreal has now been forced to suspend its business operations in San Bernardino County, the largest county in the United States. It has stopped sending drivers through other areas where it might be subject to additional seizures. It has taken a fiscal body blow by reimbursing over $1 million to its customers to make up for their seized funds. Its business model, which is in large part recognized and protected by both state and federal law, is now under threat because of government action.

Different people will draw different conclusions from all these facts. San Bernardino Sheriff Shannon Dicus says that his office confiscates illicit money so it can fight crime. Here’s the conclusion I draw: This time, the bandits wear badges.