Miladis Salgado should have been happy when federal agents returned $15,000 in cash seized from her Miami home two years earlier. But the government did not relent out of kindness or to correct a wrong. The Drug Enforcement Agency had more sinister motives.
Prosecutors knew Salgado had done nothing wrong. The lead agent in the case had admitted lack of evidence connecting her to any crime following a botched raid on May 11, 2015.
Salgado had returned from work that day to find her house in disarray. Acting on incorrect information that her estranged husband was dealing drugs, agents had raided her property and torn through her cabinets and drawers.
They found nothing related to drugs in the raid. Her estranged husband was not dealing drugs. He owned a garment sales company. But officers found something they wanted more hidden in a shoebox in the master closet: cash.
The money looked suspicious, especially for a single mom working two jobs — a full-time position at an airport duty-free store and a second gig at a Subway sandwich shop. But Salgado’s story checked out. She was saving the cash for her children, and the total included gifts from relatives for her daughter’s then-upcoming quinceañera celebration.
Prosecutors confirmed these facts but didn’t care. They withheld the money, month after month, ruining the 15th birthday party and causing countless sleepless nights.
Then, on the eve of near-certain defeat for the government in court, prosecutors finally handed back her life savings.
The move had to do with reforms passed by Congress in 2000, requiring law enforcement agencies to pay attorneys’ fees to anyone who challenges a civil forfeiture in court and wins. Prosecutors don’t like being left with the tab, so they devised a workaround.
They hold seized assets as long as possible. Then, when the court is finally about to rule against them, agents return the money “voluntarily” to rob citizens of the formal judgment they need for automatic fee recovery.
Unfortunately for Salgado, the legal system draws a distinction between probable and definite wins. So, she had to pay $5,000 in legal costs just to get her $15,000 back.
The judge in her case was willing to accept this outcome, and the 11th Circuit Court of Appeals agreed. A unanimous three-judge panel endorsed the government’s ploy in July and gave permission for federal agents to continue their gamesmanship.
Thousands of families will suffer as a result. Those who are violated once by illegal government seizures will be violated again when the same government sticks them with the fees that accumulate during long, drawn-out legal battles.
The rigged system leaves the targets of police abuse stuck with two bad options. Innocent property owners must either let the government keep part of their money in a settlement at the beginning of the process or pay a portion of their money to attorneys at the end. Thanks to this gimmick, victims can never receive 100% repayment.
Many targets of the scheme simply give up. Policing for Profit, a 2015 report from the Institute for Justice, a national public-interest law firm, found that 88% of federal civil forfeitures never make it before a judge.
Even fewer people will try if they know they have little hope of reclaiming attorneys’ fees. In most cases, the cost of fighting the government surpasses the value of the property in dispute, so the only real option is to accept the settlement demands.
Government agents count on this when they file frivolous civil forfeiture claims. But Salgado chose a different option. She partnered with the institute and petitioned the Supreme Court on Nov. 19 to take up her case.
Congress designed its 2000 legislation, the Civil Asset Forfeiture Reform Act, to prevent the type of abuse that Salgado has faced. But the law cannot work until courts revoke the Get Out of Jail Free cards they have given to law enforcement.
Innocent people such as Salgado deserve full restitution, not games.
Justin Pearson is a senior attorney at the Institute for Justice, where Daryl James is a writer.
