Michigan Civil Forfeiture Asset 2019 Update from a 2017 ICLE interview on asset frofeiture with Michael Komorn and Jeff Frazier.
US Supreme Court decided Tyson Timbs v. Indiana, 586 U.S. _____ (2019) on February 20, 2019. Tyson Timbs was convicted of drug charges that had a maximum monetary fine of $10,000.
At the time of his arrest, police seized Timbs $42,000 Land Rover, Timbs purchased with money from his father’s life insurance policy.
The state sought civil forfeiture of the vehicle, charging that the vehicle transported heroin.
The trial court denied the request, ruling that the forfeiture would be “grossly disproportionate” to the gravity of the offense, and unconstitutional under the Excessive Fines Clause of the Eighth Amendment.
The Court reversed, and held the Eighth Amendment’s prohibition against “excessive fines” applies to the states under the Due Process Clause of the Fourteenth Amendment.
The Court did not articulate a test or analysis to determine when or if a fine is excessive, and did not take a position on whether Indiana’s seizure of the Land Rover was excessive. The case remanded to Indiana for further proceedings.
In Michigan, three bills seeking to revise provisions dealing with the civil forfeiture of property were proposed in January 2019. The bills were signed into law as Public Acts 7, 8, and 9 of 2019 (the Acts) and take effect on August 7, 2019.
The Acts only apply to Article 7 (Controlled Substances) of Michigan’s Public Health Code and added MCL 333.7521 and MCL 333.7523a and amended MCL 333.7523.
Some of the changes require a civil forfeiture action be stayed until criminal proceedings are over and prohibit seized property from being subject to forfeiture or disposition unless the criminal proceeding has been completed and defendant is convicted of or pleads guilty. Seized property can be subject to forfeiture if no one claims an interest in it, or the owner relinquishes the property.
The SCAO is also required to create a form to relinquish a property right and another form for a property owner to file a written objection regarding forfeiture of property seized without a warrant. Other changes involve certain notice requirements.
According to the House Fiscal Agency Legislative Analysis of the new bills, civil asset forfeiture laws have come under scrutiny in Michigan and across the country, some calling the process “policing for profit.”
Michigan enacted legislation in 2015 and 2016 that, among other things, requires some governmental agencies to file annual reports about seized and forfeited property and make the reports publically available on a website.
That legislation also raised the standard of proof from preponderance of the evidence to clear and convincing evidence.
According to the Institute for Justice, since 2014, 33 states and District of Columbia have reformed their civil asset forfeiture laws.
Three states—North Carolina, New Mexico, and Nebraska—have abolished civil forfeiture entirely and only use criminal law to forfeit property.
The Legislative Analysis was also cognizant of the Timbs’ case and the impact on the current amendments and other civil asset forfeiture laws. While the current revisions may be premature, “they do provide some relief to a population most impacted by seizures and forfeitures of property that is not connected to criminal drug activity.” It will likely take years to see how the Excessive Fines Clause of the Eighth Amendment will apply to the states, and when will that prohibit civil asset forfeiture.
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John: So, the Supreme Court ruled in Timbs v. Indiana that Indiana’s civil asset forfeiture was unconstitutional. In May, Governor Whitmer signed in to law a package of bills amending [some] of Michigan’s asset forfeiture laws. How exactly do you see the [Timbs decision and] amendments changing the landscape of civil asset forfeiture?
Michael – Well, I think that the amendments if anything are a bandaid. They are certainly not a solution. The amendments certainly do not go as far as to address the excessiveness of fines like in the Timbs case.
The financial penalties for most of the crimes involving civil asset forfeiture in Michigan are usually under $5,000. Most if not all of the forfeitures that have taken place up to this point and that will continue to take place in Michigan, in my opinion, violate the excessive fines clause. When forfeiting property at the state level the analysis should be whether the forfeiture penalty exceeds the financial penalty of the crime.
In that respect, nothing has really changed. When there is a forfeiture case against real property, the government has essentially taken an interest in the property. While the government might not file an actual lis pendins or something else with the register of deeds, it is my experience that they will file some kind of injunction that prevents the homeowner from improving, selling or, borrowing against the real property.
Whether the government actually takes the property or has a claim to the property or the property is held by the police and disposed of, even if a conviction is required, a citizen’s traditional property rights associated with the right to own property are impaired during forfeiture.
I had a case where a client owned two houses. He inherited one, and the other house was his marital home. The government filed a forfeiture action against both houses and enjoined the homeowner from doing anything with them.
The day the order was entered in the forfeiture case, my client could not borrow against the properties, improve or sell them, all of that was encumbered by the government action.
The mere filing of the forfeiture deprived my client of his property rights without any due process. The amended statutes don’t undo that.
Jeff: I think what Michael says is right. The amendments do not address the excessive nature of the fine at all. The Timbs case says that excessive fines analysis applies to the states in the context of civil asset forfeiture – that is meaningful and more of a change than the series of statutes that the Michigan legislature passed.
The more powerful argument is against the taking of things that have no relation, no proportionality to the crime committed. There are a number of general forfeiture provisions related to sex work, trafficking, and other things, but the current amendments only apply to forfeitures taken under the Controlled Substances Act of the Public Health Code.
Call me skeptical, but I think that the law enforcement is going to try every possible loophole to maintain this income stream for lack of a better word – this policing for profit.
The police can still take the property, but they just can’t take it away. Which means that clients will find themselves in a situation where, under the threat of forfeiture, the police have taken the property and the clients are left without funds to hire an attorney.
Then if your client waives as part of a plea deal, the police can keep the forfeited property. Clients will still have unequal bargaining power, where they have a gun to their head negotiating a plea on the criminal side. Also, the fact that [the amended statute] doesn’t apply to forfeitures in excess of $50,000, will just have the police looking for larger forfeiture cases going forward.
As a practice tip, there are a couple of things that we as attorneys need to continue to do on behalf of our clients who are facing civil asset forfeiture. One is to adequately inform the client about exactly what’s going down and what their rights are.
You may recall from our last visit, there’s a Supreme Court case, that says that under certain circumstances, taking a defendant’s money, not clearly traceable to some kind of criminal activity, or perhaps excessive in light of the crime, that prevents the defendant from hiring an attorney can implicate not just the excessive fines provision, but also the Sixth Amendment right to counsel. We still want to continue to emphasize that.
Second, and at the same time, if a client doesn’t have full access to their assets, whether it’s money or other assets, or the government has decided to forfeit your client’s real property, we need to immediately I believe, make the excessive fines argument, that taking away the right to use the property is taking away a property right. I would still hammer them on both of these fronts, whether or not there has been a final forfeiture.
Max: So with respect to the waiver under a plea bargain do you think that there is an issue of say, lack of informed consent with respect to this waiver – that people do not understand that they are also sort of waving their claim to the property seized?
Jeff: The statute provides an exception for when an owner waives the conviction. Whether that is informed or whether there is actual consent there is a very good question.
Max: From your point of view, nothing really has changed with respect to representing clients who are facing civil asset forfeiture from when the two of you were in the studio couple of years ago?
Jeff: I would not go that far. I mean clearly, these amendments are a significant thing. Anything that is as important as civil asset forfeiture, that really goes to the root of so many abuses that does what this statute does is commendable. But, you are talking to a couple of criminal lawyers.
Michael: Its an attempt to be transparent, but not really having an impact on the concerns that attorneys have which are due process rights, excessive fines, and Eighth Amendment protections, things like that.
For more on this topic, Look for our Civil Asset Forfeiture Update coming in September.
The Eight Amendent
The Eighth Amendment (Amendment VIII) of the United States Constitution prohibits the federal, state, and local governments of the United States, or any other government, or any corporation, private enterprise, group, or individual, from imposing excessive bail, excessive fines, or cruel and unusual punishments, in any part of the US, on US property (i.e. a US embassy), or against any US citizen, or any resident of the US. This amendment was adopted on December 15, 1791, along with the rest of the United States Bill of Rights.[1] The phrases in this amendment originated in the English Bill of Rights of 1689.
WASHINGTON — Siding with a small-time drug offender in Indiana whose $42,000 Land Rover was seized by law enforcement officials, the Supreme Court on Wednesday ruled that the Constitution places limits on civil forfeiture laws that allow states and localities to take and keep private property used to commit crimes.
Civil forfeiture is a popular way to raise revenue, and its use has been the subject of widespread criticism across the political spectrum.
The SCOTUS has ruled that the Eighth Amendment, which bars “excessive fines,” limits the ability of the federal government to seize property. On Wednesday, the court ruled that the clause also applies to the states.
Previously, the Supreme Court had not really addressed that question. It had addressed the status of the Excessive Fines Clause, but only in the context of the federal government.
The court had, however, previously ruled that most protections under the Bill of Rights apply to the states — or were incorporated against them, in the legal jargon — under the 14th Amendment.
Justice Ruth Bader Ginsburg, writing for eight justices, said the question was an easy one. “The historical and logical case for concluding that the 14th Amendment incorporates the Excessive Fines Clause is overwhelming,” she wrote.
“For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties,” she wrote. “Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies.”
In Michigan last year, 956 people who were never charged with or convicted of a crime nevertheless lost property to law enforcement and other agencies, based on suspicions that the property may have been connected to an alleged crime.
Those 956 individuals represent roughly 14 percent of the 6,666 people in Michigan whose property was taken from them by the government under a process called civil asset forfeiture.
Of those 956 individuals, 736 were never charged with a violation for which asset forfeitures are authorized, and 220 were charged but not convicted. A further 228 individuals who cooperated with or assisted law enforcement to avoid criminal charges still had assets forfeited to the government.
The law enforcement agencies involved in forfeiture proceedings collected more than $13.1 million worth of property in 2017, of which $11.8 million was cash. In 2016, a total of $15.2 million in cash and property was forfeited to agencies.
These figures come from a report compiled by the Michigan State Police. Under a 2015 law, local agencies must send data on forfeiture to the department, which, in turn, must produce a report that it then publishes on the internet. Advocates of reforming the practice of civil asset forfeiture considered it a preliminary step.
Jarrett Skorup, a policy analyst at the Mackinac Center for Public Policy, co-authored a report with the ACLU on civil asset forfeiture in Michigan.
“Michigan has been making progress over the past few years to do a better job protecting innocent people from forfeiture, by raising the standard of evidence and increasing transparency. But as this report shows, there’s a lot of work to do. More than 3,500 people in Michigan had the government take ownership of their property in 2017 without being convicted of a crime, and nearly 1,000 of them weren’t charged with a crime or were charged and found innocent. This should not happen.”
Skorup’s reference to 3,500 people who had their assets forfeited without being convicted of a crime in 2017 includes 2,368 people who were charged with a violation with charges still pending.
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Nearly 1,000 People Not Charged or Found Not Guilty Lost Their Property Through Forfeiture
Even if you aren’t convicted of a crime, you may lose your home
Michigan law enforcement agencies took ownership of $11.8 million in cash and $1.3 million in property seized from individuals in 2017, through a legal process called civil asset forfeiture. The figures were obtained from an annual forfeiture report and responses to Freedom of Information Act requests filed by the Mackinac Center for Public Policy. The typical forfeiture involved assets – typically cars and cash – worth less than $500.
The forfeited property included eight homes, 711 weapons and 7,999 vehicles, according to the information obtained from Michigan law enforcement.
Forfeiture is the process of transferring assets to the government. The assets are first seized by police because they think the items may be connected to illegal activity. An important distinction in the process is that seizure is done by police while forfeiture is processed by prosecutors. In Michigan, no conviction, prosecution or even a formal arrest is required for officials to pursue forfeiture.
Out of the 6,666 forfeiture actions in 2017, 736 were never charged with a violation and 220 were charged but not convicted. There were 2,876 people who were charged and convicted, meaning that 57 percent of the people were not convicted before losing their assets.
“Before locking someone up permanently, our laws and Constitution require they be proven guilty beyond a reasonable doubt,” said Jarrett Skorup, who co-authored a 2015 report on civil forfeiture with the Mackinac Center for Public Policy. “In the same way, nobody should permanently lose their assets unless they are first convicted in criminal court and it is determined that the assets were gained through illegal activity.”
Nearly 75 percent of the forfeiture petitions that prosecutors filed in 2017 to retain seized property never went to trial because the property owner did not contest the claim. Eighty percent of assets taken were valued at $1,000 or less.
“This comprehensive report from law enforcement agencies across Michigan shows why Michigan needs to require a criminal conviction prior to taking ownership of anyone’s property,” Skorup said. “While most police and prosecutor offices are acting properly, because of poor state laws, nearly 1,000 people lost their assets despite never being charged with criminal activity or being found not guilty in court.”
Skorup said that the law encourages police officers to seize assets and pursue forfeiture whenever possible because doing so gives their agencies money they can use to pay for equipment, personnel and supplies.
Dave Hiller, executive director of the Michigan Fraternal Order of Police, takes a different stand on civil forfeiture. He said that it is a vital tool for law enforcement.
“It must be done properly, first of all, to assure due process is followed and additionally to eliminate any questions of impropriety,” Hiller said. “A law enforcement agency should work with the local prosecutor to ensure things are done the way the law is intended.”
Hiller said that in certain cases, civil forfeiture has a greater impact on criminals than criminal charges do. The Michigan FOP is, he said, open to improving the law to address due process concerns.
Michigan requires that police demonstrate “clear and convincing” evidence that an asset is linked to a crime for a police officer to be justified in taking it. But criminal convictions require a higher standard of proof, which is that prosecutors must prove someone committed a crime “beyond a reasonable doubt.” This means that an individual may lose the assets that police seize even if there is not enough evidence for a criminal conviction.
The Michigan House has passed a bill that would require a criminal conviction for most cases of civil asset forfeiture. But House Bill 4158 has not been taken up in the state Senate.
One of the most troubling recent scenes from Sacramento came as the California state legislature reached the end of its session. A simple bill that would rein in abuses of the civil-asset forfeiture process—i.e., when police agencies take property from people, even if they’ve never been accused of a crime—came far short of passage after the law-enforcement lobby pulled out all the stops.
Police organizations argued they would lose a significant amount of funding if a law passed requiring that they secure a conviction before taking property. They often take homes, cars and cash from people after claiming the property was used in the commission of a crime.
Created in the early days of the nation’s war on drugs, asset forfeiture was designed to grab the proceeds from drug kingpins. But most of the money now is grabbed from ordinary citizens. According to a study last year, about 80 percent of the time, seized property is taken from people who have never been charged with anything. That same study, by the Drug Policy Alliance, found wanton abuses in California cities. Police are not supposed to budget forfeiture proceeds, but they increasingly depend on the revenues to fund their operations.
The study also found “multiple instances of cash grabs by law enforcement being incentivized over deterring drug sales, wherein police wait until a drug sale concludes and then seize the cash proceeds of the sale rather than the drugs, as drugs must be destroyed and are of no monetary value to law enforcement.” It also found that some Los Angeles County cities “were found to be prioritizing asset forfeiture over general public safety concerns … .” In other words, police skew their policing strategies around these lucrative takings.
California’s law actually requires, in property seizures of more than $25,000, that the police agency gain a conviction and the legal standard requires proof beyond a reasonable doubt.
California law-enforcement agencies don’t like that higher standard, so they circumvent the state law. They participate in something called “equitable sharing”—i.e., they invite the feds into their operation, take the property using the lower federal standard, and then split the loot.
A new national study by the Institute for Justice, a Virginia-based civil-liberties group, gave California a “C+” in its civil-forfeiture laws. That leads to an obvious question: Given the terrible problems documented in California, how bad must things be in other states? Only seven states had better protections than California and the preponderance of states received “D” grades.
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An economic consulting firm reported on data last week showing that the approximately $4.5 billion in annual forfeitures now exceeds the $3.9 billion Americans lose in robberies each year. The clear point: Your local police or sheriff’s department is more likely to take your stuff than a robber. The Institute for Justice report found the problem getting worse. “It’s exploding, despite the fact that the issue is getting a lot of attention,” said Dick Carpenter, one of the study’s authors. According to the report, forfeiture revenues have more than doubled between 2002 to 2013. California agencies collected approximately $280 million over the 11-year study period—and an additional $696 million by partnering with federal agencies.
These are big dollars to local police departments, which explains the arm-twisting and lobbying as that reform bill made it to the Assembly floor. Critics of asset forfeiture agree that agencies will lose money, but argue that the government is supposed to promote justice. Their agencies should be funded through general tax proceeds, not by grabbing the homes and cars of people who may not have done anything wrong.
Last year in California, SB 443 would have, among other things, prohibited “state or local law enforcement agencies from transferring seized property to a federal agency seeking adoption by the federal agency of the seized property.” Expect something like it to return next year. As abuses mount, maybe legislators will be more likely to think about justice and not just money.
Komorn Law has represented numerous clients through the legal chaos of starting up a business in the Michigan Medical Marihuana Industry.
If you or someone you know is facing charges as a result of Medical Marijuana, DUI, Drugs, Forfeiture, Criminal Enterprise, etc. Please contact our office and ensure you’re defended by an experienced lawyer in the evolving laws.
Lead attorney Michael Komorn is recognized as an expert on the Michigan Medical Marihuana Act. He is the President of the Michigan Medical Marijuana Association (MMMA), a nonprofit patient advocacy group which advocates for the rights of medical marijuana patients and their caregivers.
Contact us for a free no-obligation case evaluation 800-656-3557.
Michigan 2017 House Bill 4158 – Require conviction for property forfeiture
To establish that property seized from a person because it may be associated with a suspected drug crime is not subject to forfeiture unless the individual is actually convicted. The bill would also prohibit officials from requiring a person to negotiate for return of their property.
However, the conviction requirement would only apply to forfeitures of less than $50,000 (meaning police and prosecutors could still take and keep those assets using a lower burden of proof).
Introduced by Rep. Peter Lucido (R) on February 2, 2017
Passed 83 to 26 in the House on May 8, 2018.
See Who Voted – Yes / No – below to establish that property seized from a person because it may be associated with a suspected drug crime is not subject to forfeiture unless an individual is actually convicted.
Komorn Law has represented numerous clients through the legal chaos of starting up a business in the Michigan Medical Marihuana Industry.
If you or someone you know is facing charges as a result of Medical Marijuana, DUI, Drugs, Forfeiture, Criminal Enterprise, etc. Please contact our office and ensure you’re defended by an experienced lawyer in the evolving laws.
Lead attorney Michael Komorn is recognized as an expert on the Michigan Medical Marihuana Act. He is the President of the Michigan Medical Marijuana Association (MMMA), a nonprofit patient advocacy group which advocates for the rights of medical marijuana patients and their caregivers.
Contact us for a free no-obligation case evaluation 800-656-3557.
