Civil forfeiture

With This Forfeiture Trick, Innocent Owners Lose Even When They Win

The Institute for Justice asks the Supreme Court to block sneaky tactics that prevent victims of property grabs from recovering their legal costs.

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Critics of civil forfeiture, the system of legalized theft that allows law enforcement agencies to seize people's property by alleging it is connected to criminal activity, often focus on the burden of proof the government faces when owners try to recover their assets. While those standards are obviously important, nearly nine out of 10 federal forfeiture cases never make it to court, largely because mounting a challenge often costs more than the property is worth. And while the Civil Asset Forfeiture Reform Act (CAFRA) allows owners who win in court to recover "reasonable attorney fees and other litigation costs," prosecutors can defeat that safeguard by dragging out cases and then dropping them before a judge decides whether forfeiture is legally justified.

In the meantime, desperate owners may decide to let the government keep some of their property, even when they are completely innocent. From the government's perspective, there is no downside. "By gaming the system and denying property owners a 'win' in court," says Institute for Justice (I.J.) senior attorney Dan Alban, "federal prosecutors have found a way to short-circuit judicial oversight of their activities, while at the same time preserving their ability to continue to abuse Americans' property rights."

I.J. is asking the U.S. Supreme Court to consider a case that takes aim at such sneaky tactics, arguing that an owner can "substantially prevail" in a forfeiture battle, as required by the CAFRA provision dealing with attorney fees, even if the government returns the property before it officially loses in court. "The threat of paying attorneys' fees is a critical check on government abuse," observes Justin Pearson, another I.J. senior attorney. "Otherwise, there is no disincentive to stop prosecutors from filing frivolous civil forfeitures against property belonging to innocent owners."

The I.J. case involves Miladis Salgado, a Florida woman whose home was searched in 2015 based on a tip that her estranged husband was a drug dealer. Although that tip proved to be unfounded, Drug Enforcement Administration (DEA) agents found $15,000 in cash that belonged to Salgado, which they seized. Salgado hired a lawyer to challenge the forfeiture on a contingency fee basis, agreeing to pay a third of any money she recovered.

The case dragged on for two years, and the government dropped it just as a federal judge was about to rule on Salgado's motion for summary judgment. Since the DEA admitted it had no evidence implicating Salgado in criminal activity, it seems likely that she would have prevailed, which explains why the government suddenly agreed to return her money. But now instead of her original $15,000, she had only $10,000, since she had to pay her lawyer.

When Salgado asked the court to make the government cover that cost, U.S. District Judge Darrin Gayles ruled that she was not entitled to attorney fees under CAFRA, since the case had been dismissed without prejudice, meaning it theoretically could be refiled. "A dismissal without prejudice cannot trigger the statutory entitlement," he concluded, "because such a dismissal lacks the necessary 'material alteration of the legal relationship of the parties' with a corresponding 'judicial imprimatur on the change.'" Last July the U.S. Court of Appeals for the 11th Circuit upheld that decision.

The Institute for Justice is now asking the Supreme Court to resolve two questions: When does an owner "substantially prevail" in a forfeiture challenge, triggering an award of attorney fees, and does a judge have the discretion to dismiss forfeiture claims without prejudice when "the court has ordered the United States to return the seized money and the lawsuit will never be refiled"?

The institute's petition argues that the 11th Circuit erred by reading the word substantially out of CAFRA, limiting its analysis to the question of whether Salgado was the "prevailing party." I.J. notes that the district court not only ordered the government to return Salgado's money but said the government would be on the hook for her legal fees if it decided to refile the case. "Ms. Salgado substantially prevailed," I.J. says. "She obtained the full return of her money, and she even obtained a court order inhibiting the United States from refiling the civil forfeiture lawsuit."

To conclude otherwise, the petition says, would deprive innocent owners of the protection CAFRA was supposed to provide. According to the House report on the bill, Congress wanted to "give owners innocent of any wrongdoing the means to recover their property and make themselves whole after wrongful government seizures." An innocent owner who loses a third of her property to legal fees imposed on her by a wrongful forfeiture action plainly has not been "made whole."

The House report on CAFRA also noted that "many civil seizures are not challenged" because of the costs owners must pay on "the arduous path one must journey" to contest them, "often without the benefit of counsel, and perhaps without any money left after the seizure with which to fight the battle." If owners are forced to pay those costs even when the government effectively concedes their innocence, the remedy provided by CAFRA has been nullified.

I.J. also wants the Supreme Court to resolve a circuit split on the question of whether judges may dismiss forfeiture claims without prejudice in cases like this. Disagreement on that point among federal appeals courts, it says, has "resulted in widely divergent outcomes in district courts across the country." The position endorsed by the 11th Circuit in Salgado's case "presents a catch-22" for victims of forfeiture abuse, the petition says: "In order for an innocent owner to be awarded attorneys' fees under CAFRA, the government's case against the money or property cannot be dismissed without prejudice. But the innocent owner cannot prevent the case from being dismissed without prejudice because, in these circuits, their right to be awarded attorneys' fees has not yet vested."

In this case, as in its many other challenges to forfeiture abuse, I.J. is calling attention to the way the system works in practice, showing that even well-intended safeguards can be defeated by coercive tactics that deprive innocent people of their property. "Seizing someone's property and forcing them to hire an attorney for two years to get it back has real costs," Pearson says. "The government can't take your property, keep it for years, and then suddenly give it back and pretend like nothing happened."

So far, of course, the government can do exactly that. The Supreme Court can put a stop to it by taking up this case.

NEXT: 14-Year-Old Faces Felony Hate Crime Charges for Posting 'Slave for Sale' Craigslist Ad

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  1. How is the government voluntarily dismissing the case =/= “substantially prevailing” for the homeowner?

    And what about standing issues in this second make believe case with the government as the plaintiff? I’d love to hear the causation theory argument.

    And finally, that district court judge should have denied that motion to dismiss. Hell the plaintiff filed the motion for summary judgment BEFORE the government filed their motion to dismiss. Reading that opinion is quite frustrating.

    1. “How is the government voluntarily dismissing the case =/= “substantially prevailing” for the homeowner?”

      They were suing to get their property back. By voluntarily dismissing the case, the government is forced to return the property. How is that not a win for the owner?

      1. Because all the money they spend for “reasonable attorney fees and other litigation costs” before getting their property back will then not being recover.

  2. From the government’s perspective, there is no downside.

    Thanks to our toothless Bill of Rights.

  3. All this legal tight-rope walking just to cover for their lack of adherence to the 4th amendment. How can you be “secure in your persons, houses, papers, and effects”, if the govt can claim those things are the criminal, and ignore the owner’s right to them. Honestly I would like a dissenting judges eyes to be charged with the viewing obscene images and have them surgically removed at their cost. Of course the judge wouldn’t be charged, but they eyes would have to prove their own innocence. There would be a lengthy, expensive process to prove their innocence and have them returned, though by that time, tissue damage would render them functionally useless. And in the very rare case that the charge against them was incorrect, they would be returned, and thus the judge would be “made whole”.

  4. Fuck you, that’s why.

    Next!

  5. Fewer and fewer honest judges, more and more graft in the system.

  6. OK, now this is going to sound really naive, but maybe there could be only two outcomes for a case: guilty/not guilty, liable/not liable.

    I mean, if you (or the property) aren’t convicted, then doesn’t this mean that they remain legally innocent? Or is “innocent until proven guilty” no longer a thing?

    1. You or your property don’t have to be convicted, it was already seized. It’s a civil charge not criminal and they charge the property not you. As the property is not human, it is afforded no rights or representation, thus it is not innocent until proven guilty. It is illegal contraband until the “owner” proves otherwise at their own expense.

      Yes this is against both the letter and the spirit of the 4th amendment. It appears to have originated from 1700’s? piracy where the pirates escape capture and leave contraband/stolen property with no owner. The state had to do something with the abandoned property, so they charged the property in liew of a the missing owner to transfer legal ownership to the govt(I think). It was expanded (again I think) to combat drug trafficking where the “owner” is suspected but not known and the money was found with drugs, thus it’s assumed to be related. Now police use it to take anything from known owners without probable cause, often times due to unrelated charges that are later dropped, but the property has already been taken and charged even though the owner is known. How this could be considered constitutional by the Supreme Court is mind boggling.

      1. I know that the government used to take the weapon used in a murder, even if the murderer used someone else’s weapon – even the victim’s weapon.

        Apparently this applied to any object causing a person’s death –

        https://legal-dictionary.thefreedictionary.com/deodand

        The object was literally given to God, and of course the monarch was trustee to make sure the proceeds were spent as God would have spent them.

        At least according to my link, they started seizing trains which killed people so the sinister railroad lobby got the doctrine abolished.

        1. DOCTOR: “From these stab wounds, I conclude that the victim died of-”

          OFFICIAL: “Strangulation, by means of that diamond necklace over there.”

          DOCTOR: “But there’s no signs of strangulation on the throat, and no blood on the necklace-”

          OFFICIAL: “Are you a loyal subject of His Majesty or not?”

          DOCTOR: “Strangulation, definitely.”

      2. I believe the contraband precedent was a Civil War case in which some slaves of the Confederacy defected to the Union, whose officer refused to send them back claiming “contraband of war.” As the fighting wound down, soldiers’ diaries often referred to hordes of northward-bound almost-freedmen as “contraband.” See the Confiscation Act of 23 April 1862.

        1. could be. Wiki claims it’s based in 1600’s British Maritime law, then later used in colonial times: “During the later Colonial years, forfeiture practices by the Crown officials using writs of assistance were one of the many activities that angered colonists, who saw the writs as “unreasonable searches and seizures” that deprived persons of “life, liberty, or property, without due process”.[7] The early Congress wrote forfeiture laws based on British maritime law to help federal tax collectors collect customs duties, which financed most of the expenses of the federal government in the early days of the republic.[6] Seizures allowed government to confiscate property from citizens who failed to pay taxes or customs duties.[5] The Supreme Court upheld these forfeiture statutes in situations where it was virtually impossible to get hold of guilty persons on the high seas while possible to get hold of their property.[6]”

  7. It’s sickening that the people who carry out these acts for the government call themselves Americans. I can’t even imagine how twisted a person has to be to do stuff like this.

    1. Convince yourself that people who run afoul of the law are all scumbags and, even if they’re not guilty of this particular crime, they’re all guilty of something they’ve no doubt gotten away with and you’re God’s avenging angel balancing the universal scales of justice and you can not only fuck people over, not only fuck people over with a clear conscience, but fuck people over and feel proud and self-righteous and good about yourself about the fucking you’re administering. You’re doing the Lord’s work!

      1. I need to just stash that CS Lewis quote somewhere convenient so I can pull it out for these situations. One moment with google:

        “Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.”

        That proved to be harder to find than I thought.

  8. The government makes the rules. It’s no surprise that the rules favor the government.

  9. 14-Year-Old Faces Felony Hate Crime Charges for Posting ‘Slave for Sale’ Craigslist Ad

    Would it still be legal to run a Craigslist ad for “Wanted to Buy: One Industrial Size Woodchipper” ? Because I’ve got some thoughts about that.

    Oops, wrong thread – I have no idea why I would have accidentally posted a comment about woodchippers and Craigslist ads in a thread about scumbag prosecutors intentionally dragging out bullshit cases just to fuck with people only to drop the charges at the last minute for a final “FYTW”. Even though this is often how they force plea bargains out of poor people who can’t afford bail: “You can plead guilty and we’ll ask for time served and you can go home this afternoon, or you can plead not guilty and sit in jail for another 10 months until your case comes up for trial in which case we’ll just move to drop the charges since we don’t actually have any evidence and it’s a bullshit charge, but your ass will still spend 10 months in jail.”

    No idea why I would have made a mistake like that. Nevermind.

  10. The subject may seem arid, but looters-by-law figure prominently in every major crash, recession and depression of recent decades. The IJ is doing a lot more than defending individual rights against pseudoscience-justified or altruistically motivated depredation by cowardly robbers. If your savings/pension are invested as a hedge against paper money inflation, the crashes, panics and liquidity crises brought on by minions invading banks and brokerages must be stopped before they wipe out your future in our fractional-reserve banking system. It is the Achilles’ heel of looter prohibitionism.

  11. WHEN will a SCOTUS case come along to END this vile and unconstitutional practice? A minister from Texas and one of the church members were driving to the Carolinas to buy and return home with a van for the church. Of COURSE they had cash. What stranger in NC would tae a check from two guys claiming to b ministers? Fifteen Large, if memory serves aright. They got pulled over in Maryland becayse, being from Texas the dity copper assumed they’d be armed. Illegal in Maryland cuz Maryland do NOT issue Mother May I Cards to non-residents.
    The dirty copper averred that the pair, despite their story and substantial supporting documentation, were out for a drug buy… the coppers drove away $15K richer, the church didnot get their van…… just ONE such story.

    Federal law MUST be changed to make it perfectly clear that before ANY LW can seize peroperty they MUST present articulable probable cause to believe the property has or was involved illegal activity. And :smelling marijuana” is NOT sufficient evnedence to seize. THEN anything seized must be protected as it sits in storage awaiting the outcome of a trial.

    THEN the new lw should state, in no fluid terms, that the owner/possessor of the seized property WILL be reimbursed for every cost to the owners of the property because of the seizure itself, and ALL costs involved in the seizure, loss of use, additonal costs, plus ALL costs incurred in the fight to get what was and remains theirs, returned to the rightful owners.

    The continuation of this scam is a blotch on our government. It MUST be ended, nationwide, and the perpetrators of these crimes against we the people need to be serving time behind grey bars.

  12. The government fights tooth and nail to hold onto the right to fuck the public.

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