Civil asset forfeiture reform needed.

July 26, 2015

The Mitten Memo. A blog by Nick Krieger.

Amanda Odom and her friend, Krista Vaughn, worked for the American Red Cross in Detroit.  After work one day, Krista went to get her car from a nearby parking lot so she could give Amanda a ride home.  As Amanda was standing on the street corner waiting for Krista to pick her up, deputies assigned to the Wayne County Sheriff’s “morality unit” arrested her and Krista on suspicion of prostitution.  Both women were wearing their work clothes and their American Red Cross work ID badges on lanyards around their necks.  Neither woman was ever charged with any crime.  However, the Wayne County Prosecuting Attorney went forward with civil asset-forfeiture proceedings and seized Krista’s automobile.  Krista had to pay more than $1,400 to get her vehicle back.  The Wayne County Prosecuting Attorney released a statement in which she explained that it was her right to seize the automobile.  She never explained why her office had gone forward with the forfeiture proceedings after declining to authorize any charges.

Detroit resident Shalina Ratliff had just dropped off her niece and had gone to visit at a friend’s house.  Immediately after her arrival, the Detroit Police special response team kicked in the door, announced a drug raid, and stormed in with guns drawn.  Why?  They were looking for marijuana.  Shalina had done nothing wrong.  Indeed, as already noted, she had just gotten there moments earlier.  Nevertheless, police pushed her against the wall and broke her glasses.  They seized all the cash from her purse—a whopping $30—and also took her Kia automobile, which was parked nearby.  Neither Shalina nor anyone else present in the house that day was ever charged with a crime.  But Shalina never got her cash or car back either.  The Wayne County Prosecuting Attorney told Shalina that she was required to pay $2,000 in costs and fees to get her vehicle back—money that she doesn’t have.  Shalina has been without a car for eight months and is now having a difficult time getting to and from work.

Did the Wayne County Prosecuting Attorney have the right, as she claimed, to seize this property without ever filing criminal charges?  Yes.  Under Michigan law as it stands today, a county prosecuting attorney may seize property in this manner, even when no one is charged with or convicted of any crime.  All that is required is a suspicion of illegal drugs, gambling, prostitution, liquor manufacturing, dog fighting, or another nuisance activity.  In many circumstances, even when these suspicions turn out to be completely baseless, the authorities may still proceed to take the assets.

Cases like this are not limited to Detroit.  Although more property is seized in Wayne County than in any other jurisdiction in Michigan, police and prosecutors have taken automobiles, boats, household appliances, jewelry, cash, and other assets from innocent people all across the state.  In other cases, authorities have attempted to take people’s homes and real estate.

Many people come under suspicion because they possess medical marijuana.  In other cases, people who own pit bulls or other specific breeds are suspected of running illegal dog-fighting rings.  In still other cases, like that described above, women are suspected of prostitution because they are observed by police officers in a bad neighborhood.  Sometimes people are simply in the wrong place at the wrong time.

In all of these situations, however—even after the prosecutors and police have determined that the medical marijuana is legally possessed, that the suspects are not running illegal dog-fighting rings, or that the women are simply leaving work—the authorities frequently refuse to drop their Draconian asset-forfeiture claims.

It is important to remember that Michigan’s asset-forfeiture statutes do not require prosecuting attorneys and police to seize property in this manner.  Rather, the laws give prosecuting attorneys and police wide discretion to choose whether to pursue asset forfeiture or not.  Yet even when no charges are filed, no incriminating evidence is uncovered, and the authorities know that the person in question is innocent, they still go after the assets with a vengeance rarely seen.

What’s the reason for this?  Here’s a hint:  It has nothing to do with fighting crime.  The bottom line is that civil asset forfeiture generates big bucks for police agencies and prosecutors’ offices.  For example, as Michigan Court of Appeals Judge Michael Talbot (a conservative who no one has ever accused of being soft on crime) pointed out in the case of Amanda Odom and Krista Vaughn, the Wayne County Prosecuting Attorney’s office is essentially engaged in the enterprise of taking peoples’ automobiles and then selling the cars back to their owners for cash money.  And it’s a big business.

The madness has to stop.  And many of our state lawmakers are finally taking note.  Last month, the Michigan House of Representatives overwhelmingly passed a bipartisan package of legislation that would amend our asset-forfeiture laws and end many of the abuses that are being committed by police and prosecutors.  These bills (House Bills 4499, 4500, and 4503-4508) would place the burden of proof on the prosecuting attorney to prove by clear and convincing evidence that the specific property to be seized was actually used for illegal purposes.  The bills would also require prosecutors and police agencies to provide regular reports concerning their seizure and forfeiture activities, keep inventories of the assets they have seized, disclose how they have used the seized assets, and exempt from forfeiture any vehicle that is used to transport, receive, or purchase less than one ounce of marijuana.  The bills are currently pending in the Michigan Senate where they have not yet been reported out of committee.

As a person who frequently complains about needless and wrongheaded legislation, I am pleased to report that these bills represent a real, commonsense solution to many of the flaws in Michigan’s current asset-forfeiture system.  Yes, I would like to see the reforms go even further by requiring a criminal conviction before any forfeiture may take place.  But this pending legislation is a great start.

We all know that under the United States and Michigan Constitutions, we may not be deprived of property without due process of law.  It’s difficult to find any “due process” in Michigan’s current asset-forfeiture statues, which allow for the capricious seizure of property at the whim of local prosecutors and law enforcement agencies.

When the Michigan Senate returns from its recess, it will undoubtedly be under pressure to find a compromise with the Michigan House on the urgent issue of road funding.  But the critical issue of civil asset-forfeiture reform must be given priority as well.  As a freedom-loving people, we simply cannot countenance any further theft by our own government.

Nick Krieger is a graduate of Ludington High School, earned a bachelor’s degree from Michigan State University, and holds a law degree and master’s degree from Wayne State University Law School.  Nick works as an attorney for the Michigan Court of Appeals and owns a home in Ludington. The viewpoints expressed in The Mitten Memo are Nick’s own, and do not reflect the views of the Michigan Court of Appeals or Media Group 31, LLC and its affiliates: Mason County Press, Manistee County Press and Oceana County Press.  Contact Nick via e-mail at [email protected] or follow him on Twitter at @nckrieger.

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