Civil forfeiture allows law enforcement to seize property that is suspected of being connected to a crime or is the result of criminal activity. “Suspected” is the key word here. If an officer suspects that the cash you have in your car—or the car itself—came from criminal activity, he can seize it and, eventually, take it for the government, all without a criminal conviction. Property owners can try to “prove” that the property is innocent, which can be difficult, time consuming and, of course, requires a lawyer.
Civil forfeiture has exploded over the last 30 years, often as a complement to the war on drugs. The system is fraught with abuses, from the thousands of innocent citizens whose property has been taken, to law enforcement’s perverse incentives to use forfeiture as a source of revenue. Congress passed the Civil Asset Forfeiture Reform Act (CAFRA) in 2000 to remedy some of the worst abuses. One provision of the act allows innocent owners who “substantially prevail” over the government to not only get their property back, but to also get attorneys’ fees, costs, and interest. That section was included to help innocent property owners find legal representation.
Miladis Salgado is a law‐abiding citizen whose personal savings were confiscated through civil forfeiture. Ms. Salgado, who works two jobs to make ends meet, was sharing a residence with her ex‐husband when he was a criminal suspect. The DEA raided the house and found a small quantity of drugs, clearly belonging to Salgado’s son and not substantial enough to pursue charges. Agents also found and confiscated a large amount of cash and cashier’s checks, as well as $15,000 that Salgado had been saving for her daughter’s quinceañera party.
Given that much her money was being held by the government, it was difficult to find an attorney. Salgado eventually found one willing to work on a contingency fee basis. The DEA knew it had no case against Salgado, so the government attorneys asked the court to voluntarily dismiss her case without prejudice (meaning it could be filed again). Her money was returned but one‐third was given to her attorney (as part of their agreement) on the theory that a voluntary dismissal without prejudice is not “substantially prevailing,” therefore no attorneys’ fees were owed.
On appeal, Ms. Salgado argued that when the government voluntarily dismisses a case that it knows it can’t win, that is “substantially prevailing” under CAFRA. The Eleventh Circuit disagreed. Represented by the Institute for Justice, Ms. Salgado is now petitioning the Supreme Court for review.
Cato has filed an amicus brief in support of Salgado’s petition. The Supreme Court should seize this rare opportunity to correct the Eleventh Circuit’s misinterpretation of the law. We argue that the term “substantially prevails” should be read as a lesser form of “prevail.” If someone “substantially climbs” a mountain, that is less than someone who climbed a mountain. Similarly, if the government voluntarily dismisses a case and returns the property to the owner, that should count as “substantially prevailing.”
While such a change may seem minor, it would be a big deal in the oft‐abused world of civil forfeiture. Without a reasonable opportunity for attorneys’ fees, innocent people all over the country lack the resources to challenge the seizure of their property. Knowing a seizure is unlikely to be challenged, law enforcement officers have become even more brazen in their willingness to take property on a whim. Correcting the meaning of “substantially prevail” would be a significant victory in the fight against government theft.