Andrew Wimer
Andrew Wimer · July 20, 2023

ATLANTA—Beating federal prosecutors in court is no easy task. But Brian Moore’s attorneys did just that when they helped him stop the civil forfeiture of $8,500 seized from him by Drug Enforcement Administration (DEA) agents at Atlanta’s airport. Brian was never charged with a crime, and the government willingly dismissed the case and cannot file it again.

By federal law, property owners are supposed to have their attorneys’ fees paid by the government when they beat civil forfeiture. But a federal court determined that because the government gave up, Brian did not “substantially prevail” and will not be reimbursed for the cost of litigating his case. Now, the Institute for Justice (IJ) is stepping in with an appeal to the 11th U.S. Circuit Court of Appeals to help Brian win his attorneys’ fees and, more broadly, to ensure that fighting civil forfeiture does not mean losing much of what was wrongly seized in the first place.

“The government should face consequences when it files meritless civil forfeiture cases,” said IJ Attorney Joshua House. “By any definition, Brian won his case, and it is clear that Congress wanted the government to pay attorneys’ fees to property owners in these circumstances, so that victims of forfeiture abuse are made whole.”

Brian knew it was perfectly legal to fly with cash to Los Angeles when he went to Hartsfield-Jackson International Airport in March 2021. But he did not get to use his money to record a music video to support his budding music career. Instead, DEA agents stopped him at the gate, badgered him into letting them search his bag, and seized his money.

Fortunately, Brian was able to find attorneys who were willing to take his case and help him navigate the maze of federal civil forfeiture procedures. They successfully compiled the evidence proving that Brian’s money was from a legitimate source—from the sale of a vehicle owned by his late grandfather. The government presented no evidence to support its allegations that the money came from a criminal source. The government dismissed the case “with prejudice,” meaning that it could never refile the forfeiture case again.

“I did nothing wrong but I had to spend thousands of dollars to get my own money back,” said Brian. “When the government takes something from you wrongly, it should be the one to pay. I hope the court will do the right thing so that innocent people can afford to defend their property.”  

The Civil Asset Forfeiture Reform Act (CAFRA) says that in “any civil proceeding to forfeit property under any provision of Federal law in which the claimant substantially prevails, the United States shall be liable for reasonable attorney fees.” Brian’s attorneys requested $15,200 for the hours they had spent on his case. While the government only requested that the district court reduce that amount, the judge instead denied the payment of fees altogether, reasoning that Brian didn’t prevail since the court had not ruled on the “merits” of the case. Because the government did not pay the fees, Brian owed his attorneys one-third of his returned money.

Half of all Department of Justice currency forfeitures are worth less than $12,090. Since property owners are not afforded an attorney, many find it difficult or financially unfeasible to find someone to take on their case. In Brian’s case, the cost of his attorney’s services was nearly twice the value of the $8,500 that was seized. If people like Brian cannot recover attorneys’ fees when they win their case, it would cost them more to fight the forfeiture than the value of the seized property. This helps explain why so many property owners fail to contest the forfeiture of their property, and more than 80% of federal forfeitures are administratively forfeited by the seizing agency rather than being litigated in court.

“The civil forfeiture system is already stacked against innocent property owners,” said IJ Senior Attorney Dan Alban, who co-directs IJ’s National Initiative to End Forfeiture Abuse. “If property owners cannot recover their attorney’s fees when they win their forfeiture case, that will make it practically impossible for most to defend against forfeiture. This will have the greatest impact on people like Brian, whose property is worth less than what they would have to spend on attorneys’ fees to recover.”

Brian’s story is sadly familiar to others who travel through Atlanta’s airport. IJ has a nationwide class action lawsuit against both DEA and the Transportation Security Administration over unconstitutional seizures and forfeitures, in which Brian is a member of the DEA class. IJ’s Jetway Robbery report showed that Department of Homeland Security law enforcement agencies seized more than $108 million from Atlanta travelers between 2000 and 2016. Also, comedians Eric Andre and Clayton English are suing the Clayton County police with the Policing Project, claiming its airport searches are unconstitutional.