On April 3rd, the Supreme Court is scheduled to review a crucial petition for a writ of certiorari filed on behalf of a single mom in Florida, Miladis Salgado. Ms. Salgado’s petition has the potential to help thousands of innocent property owners victimized by civil forfeiture. For the help to arrive, the Court simply needs to grant the petition and then apply the plain text of a statute that Congress has already passed.
Ms. Salgado lives in Miami, where she works two jobs to make ends meet and has never had any trouble with the law. But five years ago, DEA agents raided her house based on a false tip from a confidential informant that her ex-husband was a drug dealer. He wasn’t, but that didn’t stop the DEA agents from seizing Ms. Salgado’s $15,000. Part of that money was supposed to pay for her daughter’s quinceañera (fifteenth birthday celebration), which Ms. Salgado was forced to cancel.
Ms. Salgado, unlike many forfeiture claimants, was able to find an attorney to fight for the return of the wrongfully seized money. When the lead DEA agent admitted in his deposition that the United States had no evidence connecting Ms. Salgado, her ex-husband, or the money to any criminal activity, she thought the United States might finally return it. But the government held it for another year after the deposition. Finally, two years after the seizure, when the district court was about to grant Ms. Salgado’s motion for summary judgment, the Department of Justice suddenly decided to return the money and argued that because the court had not yet ruled on the merits, Ms. Salgado could not be awarded her attorneys’ fees and costs. The district court agreed with the Department of Justice, as did the U.S. Court of Appeals for the Eleventh Circuit.
The problem is a failure to apply textualism. In 2000, Congress attempted to remedy this precise situation by passing the Civil Asset Forfeiture Reform Act (CAFRA). It provides law enforcement with a 90-day post-seizure review period (closer to 185 days in practice, when other preliminary deadlines are considered) to decide whether to return seized money or proceed with a civil forfeiture lawsuit. But if the government chooses to proceed rather than return the wrongfully seized money, then the government must pay the owner’s attorneys’ fees if the owner merely “substantially prevails,” which was intentionally crafted by Congress to be an easier standard for owners to meet than “prevails.”
Sadly, many courts have read the word “substantially” out of the statute. As long as the government returns the money before the court rules on a motion for summary judgment, the courts will not make the government pay the victim’s attorneys’ fees. In practice, this transforms the 90-day review period into about two years, if it ever happens at all. Most people cannot live without their life savings for two years, so they succumb to one of the government’s repeated settlement offers, typically allowing the government to keep about 50% of the wrongfully seized money. For this reason, 88% of civil forfeitures never make it before a judge, even though the majority involve property owners who have never been charged with a crime.
It is easy to see why most innocent owners give up. As long as courts continue to apply a judicially-created “get out of jail free card” for law enforcement instead of the statute’s text, innocent owners cannot be made whole: The owners either settle with the government for a partial return of their money or litigate for years to get the money back, but without an award of attorneys’ fees and costs. Either way, the innocent owners lose.
Ms. Salgado’s story is sadly common, and it will stay that way until the Supreme Court weighs in. Fortunately, it appears the Court might. The Court has already called for a response from the Solicitor General, which is obviously a good sign, but by no means a guarantee.
Hopefully, the Court will accept Ms. Salgado’s case. Forcing an innocent owner to pay an attorney to litigate for two years to get back their wrongfully seized money imposes real costs. And allowing law enforcement to evade the disincentives passed by Congress only furthers the national problem of law enforcement viewing citizens as ATMs. As is often the case, textualism provides the solution, but it can only work if courts apply it.
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Justin Pearson is the Florida Office Managing Attorney for the Institute for Justice.