Court Says Marine Vet’s Lawsuit Against Nevada’s Forfeiture Laws Can Move Forward

Legal Issues

from the legalized-theft-program-on-the-ropes dept

On February, 19, 2021, the government — taking the form of Nevada State Troopers (and an assist via phone by the DEA) — stole former Marine Stephen Lara’s life savings.

Lara was traveling from Texas to California in a rental vehicle to visit his daughters. He had $86,900 in his car with him, along with a stack of ATM receipts detailing his withdrawals from the bank.

State troopers pulled him over, claiming he passed another vehicle too closely. After a bit of small talk about the supposed infraction (and with a trooper congratulating Lara on his good driving), the troopers got down to business. They started asking a bunch of other questions and reviewed his rental contract. During this extended conversation, Lara told officers he had some cash in the car.

That’s when things went from cordial to theft-y. The troopers took the cash (along with all the receipts), put it in a bag, and called in a drug dog to sniff it. Supposedly, the dog alerted. (This, of course, is ridiculous. As even the drug dog knows, a large percentage of cash in circulation carries drug residue.)

The troopers then tossed Lara’s car and, by the time they were done, they were nearly $87,000 richer and the ex-Marine traveling to see his daughters was stranded on the side of road, suddenly penniless.

The whole thing was caught on camera:

Nearly a year later, the DEA (which had “adopted” the forfeiture) agreed to give Lara his money back. It didn’t do this because it realized the forfeiture was wrong. It did this because the case had drawn national attention, along with a lawsuit from Lara, with the assistance of the Institute for Justice.

Lara may have won this battle — one he never should have had to fight — but he’s not done yet. He had to go most of year without his life savings, something he needed because he had lost his job the previous year during the early months of the COVID pandemic.

He’s back in court (again with the assistance of the Institute for Justice) again, trying to make things better for Nevada residents (or anyone just passing through the state) by trying to have the state’s civil forfeiture laws struck down as unconstitutional.

He’s a step closer to getting this done, as the Institute for Justice report:

On Thursday, the Second Judicial District Court for the State of Nevada denied the state’s motion to dismiss a Marine veteran’s lawsuit challenging the state’s civil forfeiture laws, after his life savings were taken through the controversial process nearly three years ago. Thursday’s decision means Stephen Lara, represented by the Institute for Justice (IJ), can continue his legal challenge to the state’s forfeiture scheme, which allows police to take people’s property without showing that they committed a crime. 

Lara’s lawsuit targets everything about the state’s forfeiture program, including the ability of local law enforcement to seek federal “adoption” of seizures to avoid any state-level restrictions or impediments. From the court decision [PDF]:

LARA’s First Amended Complaint listed the following claims: NHP has No Statutory Authority to Participate in Federal Equitable Sharing (“Claim 1”); Nevada’s Due Process Clause Prohibits Seizures Motivated by Financial Self Interest (“Claim 2”); The Seizure of LARA’s Money Lacked Probable Cause, violating Article 1, Section 18 of the Nevada Constitution (“Claim 3”); Due Process Requires a Prompt, Post-Seizure Hearing Before a Neutral Magistrate (“Claim 4”); Conversion (“Claim 5”).

The Nevada Highway Patrol says Lara is wrong. It has statutory authority to steal money from people and, even if it doesn’t, the troopers believed that they did so the NHP should be granted immunity and an early exit from this lawsuit. The NHP also claims Lara has no standing to bring this lawsuit because (1) the DEA played no part in the decision to seize Lara’s cash, and (2) [squints at ruling] this happened in the past so Lara has no reason to believe he’ll be the victim of an NHP forfeiture in the future.

The court says the NHP is wrong. Lara has standing under Nevada’s Constitution, which contains an inherent right of private action in cases like these, where the government has allegedly violated rights. That alone means the lawsuit can move forward, but the court has more to say on the matter, even as it seems to gloss over a major inconsistency in the NHP’s arguments.

Here’s what the NHP said while arguing against Lara’s standing:

NHP argues that LARA does not have standing to challenge Claim 1, because the NHP did not participate in the Federal Equitable Sharing Program as the DEA decided not to charge LARA with a crime or seek civil forfeiture, meaning there is no “live” controversy.

But it did participate in this program, even if the end result was the DEA deciding (after taking a lot of heat) to give Lara back his money 230 days after it was seized. That’s according to the NHP’s own assertions in this lawsuit:

NHP asserts that in acting to seize the property on the DEA’s behalf, the NHP Troopers were not acting in their capacity as state agents, they were acting as federal officers; therefore, the forfeiture occurred pursuant to federal law. NHP asserts that state constitutional law cannot impinge on federal policy and law concerning forfeitures. NHP argues that the Supremacy Clause applies to the instant matter and the federal law prevails.

Seizing cash “on the DEA’s behalf” is exactly “participating in the Federal Equitable Sharing Program.” Just because nothing ended up being “shared” with the NHP doesn’t mean it didn’t at least take the first steps of “participation.” The NHP is trying to have it two different ways (but not exactly both ways) in hopes that one of these arguments would see these claims tossed by the court.

That’s not going to happen.

NHP cites to one federal case in a non-binding jurisdiction suggesting that state law enforcement officers that seize property and then turn it over to a federal agency in the Federal Equitable Sharing Program are acting under federal law. Even if the Court was to accept this lineof reasoning, it does not absolve the NHP from possibly violating LARA’s constitutional rights under the Nevada Constitution. State agencies acting under federal law do not have blanket immunity to violate the Nevada Constitution and the limitations it places on Nevada’s public employees.

Additionally, the preemption doctrine does not preclude LARA from asserting his claims. The Federal Equitable Sharing Program merely gives state law enforcement officials the option to participate in it. Nevada law enforcement officials could decide to stop participating in the Federal Equitable Sharing Program at any time. Finding for LARA, in the instant matter, would not interfere with the laws of Congress.

The court notes that Nevada law places more restrictions on civil forfeitures — ones that provide more due process for those who’ve had their property seized. On top of that, the evidentiary burden is higher under state law than under federal law (“clear and convincing evidence” rather than “preponderance of evidence”). Given these realities, there’s really only one reason the NHP would have roped in the DEA for this, as the court states extremely diplomatically:

In the instant matter, when NHP seized the cash in LARA’s car NHP was operating under Nevada, not federal, law because NHP seized the property pursuant to the statutory authority granted to it under NRS Chapter 179. As highlighted above, Nevada law invokes statutory requirements on how NHP is to deal with the seized property. When NHP decided to turn the seized money over to the DEA, it is possible that they circumvented these statutory requirements.

It is, indeed, “possible.” In fact, that’s exactly what happened, even if the NHP will never admit to it.

Lara’s lawsuit will move forward. The claims that are still disputed — including the allegation that the NHP’s pursues forfeitures for the sole purpose of enriching itself — are now open for discovery. I’m sure the NHP is in no hurry to provide more details on its forfeiture efforts. But if this keeps moving forward, it will have to do exactly that. It can’t settle this lawsuit without agreeing to heavily modify its forfeiture practices. For the moment, at least, Stephen Lara has the upper hand.

Filed Under: asset forfeiture, civil asset forfeiture, dea, nevada, stephen lara