CBP still employing dubious ‘Hold Harmless Agreements’

We reported last month on the federal seizure of the 46-foot sailboat Janice Ann. Now an update: in a letter to petitioner Jeffrey Southworth, the U.S. Customs and Border Protection division of the Department of Homeland Security has offered to return the boat in exchange for a hold-harmless agreement sparing Customs from any demand for attorneys’ fees, damages or other relief. If the deal is not accepted within 30 days, “administrative forfeiture proceedings will be initiated by publishing a notice of seizure and intent to forfeit for 30 consecutive days at www.forfeiture.gov. After that time, the government acquires full title to the seized property.”

The CBP letter is here (& Sailing Scuttlebutt).

The language seems calculated to allow for a reading that Southworth’s options are limited to indemnifying the Government and its agents for taking his property or conceding the forfeiture of his boat. Perhaps this is CBP’s idiosyncratic (and absurd) understanding of “nor shall any person…be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.“ At best, it is deceptive.

Sadly, this seems to be long-running policy. CBP tried the same in last year’s attempt to steal the Nuevo Renacer’s church donations and acknowledged the policy in 2004:

 ”On October 30, 2003, upon plaintiff’s return from Iran via Portland International Airport, Customs officials seized from him items they suspected violated the Iranian Transactions Regulations (“ITR”), 31 C.F.R. pt. 560 (2003). On October 31, 2003, plaintiff contacted the Portland Customs office and requested Customs return his property. On January 14, 2004, defendant Megan Fishel, a Portland Customs official, indicated in a letter to plaintiff that “42 compact discs and four cassette tapes of recorded music, one setar,*fn1 one pipeflute, and five pairs of shoes” were exempt from the ITR. Ms. Fishel further stated plaintiff would forfeit the exempt property unless he signed a document entitled “U.S. Customs & Border Protection Hold Harmless Release Agreement” (“hold harmless agreement”). On or about January 20, plaintiff spoke with Ms. Fishel and demanded Customs return his property; she demanded that he first sign a hold harmless agreement; he refused.

On January 27, 2004, plaintiff’s attorney called defendant Jennifer Stilwell, a lawyer for Customs,*fn2 and informed her he believed Customs was violating plaintiff’s constitutional rights by conditioning return of his exempt property on him signing a hold harmless agreement. Ms. Stilwell and another defendant-Customs lawyer, David Goldfarb, advised the Portland Customs office at times material from their offices in Seattle, Washington. Plaintiff alleges Ms. Stilwell and Mr. Goldfarb (1) advised Ms. Fishel “on the legality of requiring waivers of liability from property owners before returning their exempt property,”*fn3 (2) regularly dispensed “legal advice by telephone and other means to the Portland Customs Office”; and (3) “materially aided” the Portland Customs office’s “hold harmless policy” by reviewing and approving the form of the hold harmless agreement.

On January 28, Ms. Fishel notified plaintiff’s attorney that after consultation with Customs lawyers, “we are returning [the exempt property] to your client without requiring that your client sign a Hold Harmless Agreement.” In conversations initiated by plaintiff’s attorney whereby plaintiff threatened to challenge the constitutionality of Customs requiring a hold harmless agreement before releasing exempt property, both Ms. Fishel, on January 28, and Ms. Stilwell, on February 5, told plaintiff’s attorney the Portland Custom’s office “would continue its policy of requesting that owners sign a hold harmless agreement as a condition of return of their exempt property.”” Anoushiravani v. Fishel,  (D. Or. July 19, 2004).