A second pandemic: virus opportunism

WASHINGTON — America’s encounter with COVID-19 is causing people already enthusiastic about enlarging government to strenuously affirm the self-evident: the fact that government can perform indispensable functions. And a new pandemic — virus opportunism — is intensifying calls by perennial advocates of substantially enlarged government for just that. Government, they say, should be understood sentimentally as (in words ascribed to former Massachusetts congressman Barney Frank) “simply the name we give to the things we choose to do together.”

So it is serendipitous that on

Friday the Supreme Court will consider whether to take the case brought by Miladis Salgado.

Her 2015 encounter with “the things we choose to do together” left her unenchanted by the romance of government.

Salgado had two jobs, one at a Subway sandwich shop, another at an airport duty-free store where she underwent periodic background checks to guarantee that she had no criminal record. Almost five years ago (May 2015), Drug Enforcement Administration agents acted on a tip that her estranged husband, who was sharing a house with her, was a drug dealer. They raided her home while she was at work. When she returned to a household in shambles, she found that the agents had confiscated her life savings — $15,000 in cash, mostly gifts from family members, that Salgado hoped to spend on her daughter’s 15th-birthday “quinceañera” celebration.

The tip having proved false, the agents promptly returned her money, with profuse apologies, right? Not exactly.

Although the DEA had no evidence connecting Miladis or her money to any criminal activity by anyone, it had her money — and the labyrinthine maze of civil forfeiture to use extortionately against her. Under civil forfeiture the government can seize property suspected of being produced by, or involved in, crime. The property owners bear the burden of proving that they were innocent of such activity. Proving this can be, and government has an incentive to make it be, a protracted and costly ordeal in which people, often of modest means, must hire lawyers to do battle against government’s unlimited resources.

When the victims conclude, as they often do, that the challenge is too daunting, government pockets a portion of its ill-gotten loot. So civil forfeiture is a textbook example of moral hazard — an incentive for perverse behavior. Government has a financial interest in the outcome of cases it can create.

Against the government’s big legal battalions, however, Salgado has deployed the Institute for Justice’s public interest litigators, who know that lucrative law enforcement can become lawless: An Institute report (“Policing for Profit”) shows that 88% of civil asset forfeiture cases never come before a judge. This is because most property owners are ground down by the process and capitulate to a settlement favorable to the government that dictates it, often keeping roughly 50% of the victims’ property.

Twenty years ago, however, Congress passed the Civil Asset Forfeiture Reform Act requiring the government to pay the legal fees of a person who “substantially prevails” when contesting a forfeiture in court. This, however, gave government a new opportunity for punitive nastiness against the innocent.

If years of dilatory government do not suffice to discourage government’s victims from seeking restoration of their property, the government waits years, until it seems likely to lose in court, then surrenders the seized property in order to dodge judicial compulsion. The government then argues that no victim “substantially prevails” when the property is restored, so the victim need not be made whole by obtaining attorneys’ fees, costs and interest.

Circuit courts have differed about this practice. Those that have tolerated it have been confused or careless regarding Congress’ clear intent that victims of spurious forfeiture cases not emerge from the process injured.

Because a district court dismissed the DEA’s case involving Salgado “without prejudice,” only $10,387.92 was restored to her. The rest of her $15,000 was withheld for her lawyer, who worked on a contingency fee basis. The intent of the 2000 law, however, was for the government, having lost, to pay its victims’ costs. Salgado wants the court to rule that she substantially prevailed.

The government’s last-minute capitulation gained it nothing but the pleasure of injuring her financially. This is one of “the things we choose to do together.”

Virus opportunists who today are vociferously regretting Americans’ skepticism about government ought to regret that government supplies so many reasons for it. The court should take Salgado’s case and side with her. She had no quinceañera celebration for her daughter, who must wait until her next 15th birthday.