Kermit Warren Forfeiture

Kermit Rebuilds His Life After Hurricane Katrina, Saves Up a Nest Egg, and Tries to Use It to Build a Father-Son Business

Kermit Warren is a lifelong resident of New Orleans and the Lower Ninth Ward, a predominately Black neighborhood that was completely submerged during Hurricane Katrina. He is a grandfather and the head deacon of a historic Baptist church in the ward. When the levees broke after the hurricane, Kermit and his family lost almost everything. But slowly, he managed to rebuild. Kermit worked as a contractor with the Army Corps of Engineers to clean up his neighborhood after the flood waters receded. At various times, he also worked as a longshoreman at the Port of New Orleans. For about a decade, Kermit worked at the popular Central Grocery, helping to make the olive salad used in their world-famous muffuletta sandwiches. Eventually, he moved on to shining shoes at the Roosevelt Hotel. During all this time, he collected and hauled scrap metal to supplement his income.

When the COVID-19 pandemic hit, the Roosevelt had to lay Kermit off. (He was rehired in mid-2021.) At roughly the same time, Kermit’s son Leo lost his job at another hotel. Disappointed but not discouraged, Kermit saw these layoffs as an opportunity to turn his longtime scrapping side gig into a fulltime, father-son business.

To do so, Kermit and Leo would need a better tow truck. Luckily, over the years, Kermit had diligently saved up nearly $30,000, which he kept in cash. Kermit has no mortgage, and his living expenses are, in his words, humble. Every week, he would set aside $100 to $200 (and even more during the holiday season at the Roosevelt). Additionally, when his parents passed away, he inherited a total of about $8,000.

With Kermit’s savings, know-how, and vision for the business guiding them, Leo and Kermit’s brother helped him search for tow trucks online. (Kermit is not tech savvy.) Eventually, they connected with Buckeye Forklift in Plain City, Ohio, near Columbus, regarding a particular tow truck. After settling with Buckeye on a cash price, Kermit’s brother helped book Kermit and Leo a one-way flight to Ohio; they intended to drive the truck back to New Orleans.

Kermit and Leo Fly to Ohio, and the DEA Takes Kermit’s Life Savings

Unfortunately, Kermit and Leo, who have spent very little time traveling, mistakenly flew to Cleveland instead of Columbus—putting them about a two-hour drive away from Buckeye and the truck. By the time they made it, Buckeye was closed, and its lot was locked. With no motels nearby and no car, Kermit and Leo spent the night outdoors near the lot, shivering in the cold.

Early the next morning, someone from an adjoining business opened the lot, and Kermit and Leo were able to enter and inspect the truck before anyone from Buckeye arrived. They realized that the truck was too large and heavy for their needs, so they abandoned the plan to buy it. Instead, they took an Uber to the Columbus airport and bought two one-way tickets back home to New Orleans.

Going through TSA security screening at the Columbus airport, Kermit was asked about his cash by the screeners. He informed them that he was traveling with close to $30,000 in cash, and they let him continue through security to his boarding gate. But, pursuant to TSA policy, the screeners informed the DEA that Kermit was flying with a large amount of cash. Just before Kermit and Leo boarded their flight, three DEA officers stopped them and began asking accusatory questions about their trip and about the cash.

The DEA officers became increasingly hostile and refused to review the evidence Kermit and Leo tried to show them, including photos of the truck advertisement and their communications with Buckeye. It became apparent to Kermit that the officers were going to take his life savings no matter what. (This is common DEA practice. At airports across the country, DEA officers regularly takes people’s money solely because they are traveling with a “large” amount of cash, even though traveling domestically with any amount of cash is entirely legal.)

Panicking, Kermit made a bad decision.

Kermit’s other son, Kermit Jr., is a police officer who used to work for the New Orleans Police Department (NOPD). When Kermit Jr. moved to another city, he gave Kermit his NOPD badge as a keepsake. Kermit is very proud of his son’s job and success and carried the old badge in his wallet. In a moment of desperation to avoid losing his life savings, he showed it to the DEA officers and falsely claimed to be a retired NOPD officer himself. Kermit readily admits that this was a foolish and uncalled for mistake and lapse in judgment.

Kermit quickly admitted the truth about the badge, and the officers took his life savings. But they had no basis to believe that Kermit’s cash was connected to any criminal activity.

The Government’s Civil Forfeiture Complaint

Kermit was not charged with any crime, let alone convicted of one. But six months later, the government filed a civil forfeiture complaint in federal court. It seeks to permanently keep Kermit’s life savings on suspicion that it was the proceeds of a drug crime or intended to be used for a drug crime. The complaint relies heavily on Kermit’s panicked lie about being a retired NOPD officer—which, of course, is irrelevant to whether his cash is connected to any crime.

The complaint makes clear that the government’s post-seizure investigation turned up no evidence of criminality by Kermit, nor any connection between his cash and any crime.

First, the government alleges that a drug dog alerted positively to the cash. But, even assuming the dog’s reliability (a big assumption), that alert is unsurprising, as it is widely known that the vast majority of U.S. currency has traces of drug residue.

Second, the government alleges that “in or about September 2020, the DEA in New Orleans, Louisiana, received information regarding suspected drug trafficking” at the address where Leo (but not Kermit) lives. But that vague allegation does not even imply Kermit’s involvement (or even Leo’s) in any alleged criminality. It is an anonymized allegation of “suspected” criminal activity in a neighborhood where, sadly, crime and drug use are rampant. If the government had a reason to believe that Kermit had any connection to whatever “information” the DEA received in September 2020, it should have included that allegation in the complaint.

With such flimsy allegations, the government is effectively making Kermit prove his own innocence in order to keep his life savings.

Civil Forfeiture Turns the Presumption of Innocence on Its Head, and It Incentivizes Abusive Policing

The presumption of innocence is a cornerstone of our legal system, but civil forfeiture turns that bedrock principle on its head. Under federal law, the government is required to bear the burden of proving that the property it wants to keep is the proceeds of or otherwise connected to a crime. But in reality, the civil forfeiture process often forces people to prove the legitimacy of their earnings and prove their own innocence. That is because with civil forfeiture the government bears only the low burden of showing a “preponderance of the evidence,” as opposed to the “beyond a reasonable doubt” standard in criminal cases.

But the civil forfeiture process is so confusing and difficult to navigate without hiring a lawyer (at a cost often greater than the amount being forfeited) that the vast majority of people do not even make into court, instead losing their property through “administrative forfeiture.”[1] And, if they do make it into court, the government again counts on the cost and confusion of the process to ensure that most forfeitures will occur without the government having to make a real case. That is how allegations as flimsy as those in Kermit’s case make it into court.

Another reason for such flimsy allegations is because federal law enforcement agencies have a profit incentive to forfeit as much cash as possible. For example, when the DEA or the FBI successfully forfeits property, those proceeds go to the Department of Justice’s Assets Forfeiture Fund, and the DOJ doles those funds back out to law enforcement agencies to spend as they see fit. According to publicly available data, the DEA alone netted nearly $2.9 billion from 2004–2019. This creates perverse incentives for over-policing and abusive policing. It also creates the potential for federal police to self-fund—or to at least pad their budgets—without any congressional approval or oversight.

Civil Forfeiture Disproportionately Abuses People of Color and Poor People

Unsurprisingly, the abuses incentivized by civil forfeiture fall hardest on the marginalized and disadvantaged, as the Institute for Justice’s latest report on nationwide forfeiture abuse summarized: “[F]orfeiture’s financial incentive may promote negative interactions between police and the public, a particular risk to communities of color. Indeed, there is evidence forfeiture disproportionately affects Black men. And recent research finds increases in arrest rates for Blacks and Hispanics during times of fiscal stress and when law enforcement can benefit financially from forfeiture under state law. Not only may forfeiture target communities least equipped to fight back, it may further burden lower-income and other disadvantaged communities by depriving them of needed resources.”[2]

Similarly, an award-winning investigative reporting series from South Carolina’s Greenville News found that “Police are systematically seizing cash and property—many times from people who aren’t guilty of a crime—netting millions of dollars each year. South Carolina law enforcement profits from this policing tactic: the bulk of the money ends up in its possession. . . . These seizures leave thousands of citizens without their cash and belongings or reliable means to get them back. They target black men most, our investigation found—with crushing consequences when life savings or a small business payroll is taken.”

The Legal Claims

Under the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), the “burden of proof is on the Government to establish, by a preponderance of the evidence, that the property [it seeks to keep] is subject to forfeiture.”[3]

This was a crucial, if limited, legal reform. Under the previous version of the law, the government merely had to show there was “probable cause” in order to forfeit someone’s property. That old standard was ripe for abuse.

But CAFRA’s reform is only meaningful if the courts actually hold the government to its burden of proof and stop requiring people to prove their own innocence. That means the government needs to present evidence “that an actual, rather than purely theoretical, connection exists between the currency in [a person’s] possession and the drug trade.”[4] And because civil forfeiture does not require a criminal conviction (or even a charge), it is crucial for courts to remember that they “may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions” without real evidence of guilt.[5] Unfortunately, some courts take these requirements more seriously than others.[6]

In Kermit’s case, none of the allegations in the government’s forfeiture complaint even purport to establish that he has committed a crime, that his cash was the proceeds of a crime, or that his cash was intended to be used for a crime. That should be the end of the matter. Those deficiencies mean the government cannot meet its “congressionally-imposed burden” of presenting real evidence “that would tip the scale toward connecting” Kermit’s cash to a crime.[7]

Any effort by the government or the court to instead require Kermit to prove his own innocence would not only violate CAFRA, but also the constitutionally mandated presumption of innocence. Moreover, forfeiture in these circumstances would violate the Eighth Amendment, which prohibits the imposition of “excessive fines.” Without proof connecting Kermit’s money to criminality, any amount of forfeiture is excessive.

The Court and the Parties

This is a federal civil forfeiture lawsuit in the United States District Court for the Southern District of Ohio, case no. 2:21-cv-1621. The plaintiff is the United States of America. Because this is a civil forfeiture case, the defendant is technically Kermit’s cash—“$28,180.00 in United States Currency.” Kermit is the claimant, defending against the forfeiture of his life savings.

The Litigation Team

This case is being litigated by Institute for Justice Senior Attorney Dan Alban and Attorney Jaba Tsitsuashvili, who litigate civil forfeiture and other property rights cases nationwide. Local counsel is Kevin P. Foley of Reminger Co., L.P.A. in Columbus, Ohio.

About the Institute for Justice

The Institute for Justice is the nation’s leading advocate for private property rights and the abolition of civil forfeiture. IJ is currently litigating a nationwide federal class action against the TSA and the DEA on behalf of travelers who have been unlawfully detained and had their cash seized without probable cause at airports across the country.

IJ regularly comes to the defense of Americans nationwide to fight civil forfeiture, including the owner of a small trucking business who had his cash seized at an airport in Arizona; a nurse traveling to her home country of Nigeria to start a medical clinic for women and children; and a retiree traveling to purchase a home in his native Albania.

[1] Institute for Justice, Jetway Robbery? at 17 (July 2020).

[2] Institute for Justice, Policing for Profit at 10 (3d ed. Dec. 2020) (citations in footnotes).

[3] 18 U.S.C. § 983(c).

[4] United States v. Ten Thousand Seven Hundred Dollars, 258 F.3d 215, 225 (3d Cir. 2001).

[5] Nelson v. Colorado, 137 S. Ct. 1249, 1256 (2017).

[6] See Amicus Brief of Institute for Justice, United States v. $69,490.50 in U.S. Currency (4th Cir. Mar. 16, 2021).

[7] United States v. Assorted Jewelry, 833 F.3d 13, 17 (1st Cir. 2016).