On May 11, 2015, Miladis Salgado returned home to find her life turned upside down. While she was at work, police raided her home and seized her entire life savings—$15,000 in cash—based on a tip that her estranged husband was dealing drugs. He wasn’t, but that didn’t stop the Drug Enforcement Agency (DEA) from attempting to keep Miladis’s money forever.
The DEA would eventually admit that it had no evidence connecting Miladis, her estranged husband, or any of their money to any criminal activity, but the DEA wanted to keep her money anyway. Miladis insisted on vindicating her rights, and after two years of fighting in court, it appeared she was finally about to win. What she didn’t know was that the government lawyers had a trick up their sleeves. Right before the court was about to rule, they suddenly agreed to give the money back and claimed this meant Miladis had not won her case and therefore should not receive an award of attorneys’ fees. Miladis’s lawyer objected, but the court agreed with the government. As a result, Miladis was not made whole, even though she did nothing wrong, as one-third of her wrongfully seized money went to pay her attorney.
By law, the government is required to pay attorneys’ fees in forfeiture cases whenever a property owner “substantially prevails.” But by suddenly throwing in the towel after fighting for years, government attorneys can claim that the owner didn’t technically win and doesn’t deserve to have their fees paid. That is far from what Congress intended when it passed the Civil Asset Forfeiture Reform Act in 2000, but many courts have been willing to rule against property owners despite the plain meaning of the law.
When courts remove the disincentives created by Congress, law enforcement behaves precisely as one would expect. First, the law enforcement agencies maximize revenue by seizing money whenever possible, even without any good reason. Second, when an owner objects, law enforcement uses the time and expense of litigation as negotiating leverage to extract a settlement allowing the government to keep part of the wrongfully seized money. Finally, in the rare cases where the innocent owner has the wherewithal to fight back in court, law enforcement drags out the litigation for years in the hope of obtaining a settlement, but then returns the money at the very last minute before the court rules, so as to avoid paying the innocent owner’s attorneys’ fees. No part of the process has anything to do with fighting crime.
Miladis chose to fight for her rights, but most civil forfeiture victims cannot spend thousands of dollars and years in court fighting to get their property back. In fact, according to the Institute for Justice’s (IJ) report Policing for Profit, 88% of federal civil forfeitures never make it before a judge. In many cases, the cost of hiring an attorney to contest the forfeiture in court is more than the value of their property, so their only real option is to give in to the prosecutor’s settlement demands and then walk away. When innocent Americans are treated this way, many of them will never trust our legal system again.
The Institute for Justice teamed up with Miladis to bring her petition for attorneys’ fees to the U.S. Supreme Court. The government should not be able take your property, keep it for years, and then suddenly give it back and pretend like nothing happened. Unfortunately, in April 2020, the Supreme Court declined to hear the case.