Innocence until proven guilty should also mean an individual isn’t punished until guilt is established in court. But in Michigan and other states, a suspect can lose property and cash without ever even being charged with a crime.
A package of bills voted unanimously out of committee would establish a higher threshold for civil forfeitures. But it should be toughened to require a conviction before property is taken.
A new report released jointly by the conservative Mackinac Center for Public Policy in Midland and the liberal Michigan ACLU clearly illustrates the problem with forfeitures. That the two often ideologically opposed organizations can find unity on this issue makes the case that reform is needed much stronger.
As the joint report notes, under criminal forfeiture property can’t be kept by government until the owner’s guilt is established beyond a reasonable doubt.
But the standard is much lower for civil forfeitures. State law allows law enforcement to take property merely suspected of attached to an illegal activity, and without the defendant ever having his or her day in court. The requirement is only that there be a “preponderance of evidence” that a crime has been committed.
Consequently, many people have been forced to pay huge fines and fees to retrieve their possessions, even though they were never convicted or even charged with a crime.
“When the government can transfer property from citizens to the state without proving wrongdoing, there is clearly something wrong,” said Jarrett Skorup, a policy analyst with the Mackinac Center and co-author of the report. “The foundation of good government is private property rights and the rule of law — civil forfeiture violates both of these.”
A recent study from a national group, Fix Forfeiture, concluded Michigan’s forfeiture laws are among the most abusive in the country.
Local law enforcement agencies are using civil forfeiture to supplement their budgets and pay for specific programs. That provides a perverse incentive to seize property.
From 2009 to 2013, Michigan law enforcement agencies reported $123.5 million in drug-related forfeiture proceeds.
At least another $149 million was taken by Michigan law enforcement agencies from 2001 to 2008, an average of about $18 million per year.
That means more than $270 million has been seized from Michigan residents since 2001. Since these figures only include forfeitures related to drug crimes, the total value of property seized is likely far greater.
The pending Michigan bills raise the burden of proof standard for determining when property is seized to “clear and convincing evidence,” and requires police agencies to track and report seizures. That should result in fewer takings.
But they do not require a conviction before a seizure, and that is a major flaw that must be corrected. And they also allow agencies to continue the practice of using seizures to fund their operations.
Still, this package is a good start. Efforts should be made to improve the bills to better protect civil liberties.
Michigan police agencies seized some $23.9 million last year from suspected drug traffickers, according to a forfeiture report released by the Michigan State Police.
Subtracting costs and shares of assets paid out to partnering organizations, state law enforcement agencies netted $20.4 million, according to data disclosed last month in the Michigan State Police 2015 Asset Forfeiture Report. Those numbers are about even with what MSP declared in its report covering 2013, when $24.3 million in assets were seized, netting $20.2 million. In 2012, $26.5 million in assets were forfeited, with $22 million netted.
However, figures from Michigan’s drug asset forfeiture program, which focuses on the seizure of cash and property assets of drug traffickers obtained through illegal activity, may be undercounted.
Of the 686 law enforcement agencies in Michigan that were sent a Government Asset Forfeiture Report form, 56 agencies failed to respond (there is no penalty for not responding), said Shanon Banner, a spokeswoman with the Michigan State Police.
Of the responding agencies, 332 reported asset forfeitures and 298 reported none.
Not a single county prosecutor’s office of the 69 that filed reports with the state reported asset forfeitures; prosecutors in 14 of Michigan’s 83 counties did not file reports.
Prosecutors in Wayne, Oakland and Macomb counties did write reports, Banner said.
The vast majority of forfeitures proceeded via “administrative forfeiture” rather than the circuit court system.
Among local police agencies, 81 percent of cases were handled by administrative forfeiture. Among multijurisdictional task forces, the proportion of cases handled that way was 72 percent.
Some 70 percent of Michigan State Police forfeiture proceedings were handled this way, as were 85 percent of those initiated by the state’s 83 sheriff’s offices.
Victor Fitz, Cass County prosecutor and immediate past president of the Prosecuting Attorneys Association of Michigan, explained the administrative asset forfeiture procedure: When property is seized, its owner is sent notice and can contest the seizure within 20 days. If that happens, the case proceeds through the circuit court system. If the owner fails to do so, he or she forfeits ownership to the seizing agency.
Asset forfeitures are a civil, not criminal, process, Fitz said, because the target is property, not an individual. That’s why property can be seized even when criminal charges are not filed.
“A lot of times, people don’t want to throw good money after bad” by pursuing a court hearing they will likely lose, Fitz said.
The current standard for asset forfeitures is “a preponderance of the evidence.”
But if the forfeiture reform passed unanimously by the Michigan Senate last week becomes law, that standard will shift to “clear and convincing evidence.” That is above a preponderance but below the “beyond a reasonable doubt” standard required in criminal cases.
Gov. Rick Snyder’s signature is the last remaining hurdle to the measure becoming law, and he is “starting a thorough review before making a decision how to proceed,” spokesman Dave Murray said Friday.
The Prosecuting Attorneys Association of Michigan supports the Senate reform, Fitz said, along with its reporting requirements. A higher standard and additional transparency should ensure that seizures “remain viable” as a law enforcement tool, he said.
A move to a clear and convincing standard would be a “step in the right direction,” said defense attorney William Maze, who has worked dozens of asset forfeiture cases in Wayne County. But Maze said a better reform would be barring forfeiture proceedings until after a conviction has been obtained.
One of Maze’s clients was visiting a friend in Detroit when police came to serve a drug search warrant. Because the woman was present when the warrant was served, police swept her into the action and filed notice to seize her car. Maze was able to get the car back, but pointed to that example as an abuse of the forfeiture system.
Oakland County Sheriff Michael Bouchard said his office works “hand in glove” with Oakland County Prosecutor Jessica Cooper in forfeiture matters.
The prosecutor’s office handles all sheriff’s office forfeiture cases in circuit court, and Bouchard said the offices take a conservative approach. He cited the case of an Oakland County business that was selling drugs, but also had legitimate business income. The sheriff’s office did not push for seizure of the business due to that legitimate income.
Bouchard was an advocate for the reform the Legislature passed. He believes the “clear and convincing evidence” standard demands a “tangible connection to criminality” that will lessen abuses.
“Being in the room doesn’t mean there’s a nexus” to illegal activity, Bouchard said.
In addition to the farm, police seized “cars, medical records, cameras, video recorders, computers, guns” and more. Though Ashley Duval was never charged with a crime, her father and brother were charged and convicted, and the authorities lumped their property together. Duval wrote of feeling hopeless in the face of a seizure that would be costly to fight.
“Asset forfeiture laws need to be completely redone,” Duval wrote. “That day (of the raid) was one of the most heartbreaking, brutal days ever, watching (police) take what they wanted and not being able to do a darn thing about it.”
In Macomb County, local police seized more than $2 million in 2014, down almost $700,000 from 2013. The county sheriff’s office seized $181,619 in assets, up almost $23,000 from the previous year.
In Oakland County, local police seized just less than $1.8 million in assets in 2014, up more than $345,000 from 2013. The sheriff’s office seized $393,845 in 2014, up $32,682 from 2013.
In Wayne County, local police seized $5 million in assets in 2014, down almost $1 million from 2013. The sheriff’s office seized $525,754 in assets, down $108,000 from the year before.
Paul Walton, chief assistant to Cooper in Oakland County, said a change in the burden of proof “would make no difference in the way we proceed” in forfeiture cases. Only specialists staff the office’s asset forfeiture unit. If it’s a business in danger of being seized, the office asks for records to see if there is legitimate income.
“We’re not in it for the money,” he said. “There’s always a proportionality argument” in forfeiture cases, Walton said, meaning that what’s seized is the proceeds of criminal behavior, not property taken on a hunch or because someone was in the wrong place at the wrong time.
“That power is a pretty big sword to wield,” Walton said.
Westland — Marijuana and pizza may be a popular combination, but the state Court of Appeals ruled last week it isn’t enough to warrant police seizure of property.
The state appellate court overturned the forfeiture of a car after ruling the driver didn’t use the vehicle to buy marijuana found by police, but instead received the weed as a tip for delivering a pizza.
The 2-1 decision came down Thursday, a day after House Bill 4499, part of a seven-bill package seeking to reform the state’s forfeiture laws, was passed by the Michigan Senate, 38-0. The Michigan House of Representatives in June approved the measure 104-5.
The Westland case began with an April 2013 traffic stop, during which Westland police officer Robert Fruit found a gram of marijuana on the driver, Linda Ross.
“Linda worked as a delivery driver and had received the marijuana as a tip earlier in the day after delivering a pizza to a customer,” the State Court of Appeals decision said.
The 2007 Ford Focus was seized under civil forfeiture laws that allow authorities to confiscate property that’s used to commit crimes. Ross’ father, Steven Ross, hired attorney William Maze, who specializes in forfeiture cases, to fight the case.
“At a forfeiture trial, Fruit testified that Linda told him, upon her arrest, that she purchased the marijuana from a customer to whom she had delivered a pizza,” the appellate court decision said.
“However, Linda testified, and the trial court found credible, that she received the marijuana as a tip for delivering pizza and that she did not intend to go to the customer’s house in order to purchase the marijuana.”
Maze said: “The question in this case was, did she use the car to purchase marijuana? If not, then they can’t seize the car. Possession of a drug isn’t enough.”
While Wayne Circuit Judge Robert Colombo agreed with Maze’s contention that mere possession of marijuana isn’t enough to warrant a seizure, the judge ruled Ross’ vehicle was used for the purpose of receiving the drug, and, thus, subject to forfeiture.
Appellate judges Michael F. Gadola and Jane M. Beckering overturned the lower court’s decision, with Judge Kathleen Jenson dissenting.
“Despite Linda’s testimony that she sometimes received marijuana as a tip from various customers, there was no evidence that she expected to receive it on this particular occasion, that this particular customer had given her marijuana before, or that she was motivated to go to the customer’s house by anything other than a delivery call,” the appeals court said.
“According to plaintiff and the trial court’s perspective, the fact that ‘the car was used to receive marijuana’ because marijuana was placed into it established — on its own — that Linda used the vehicle for the purpose of receiving marijuana. By that logic, a vehicle would be subject to forfeiture in all cases of mere possession.”
Assistant Wayne County Prosecutor Maria Miller said: “We are in the process of determining whether we will appeal this or not.”
However, that figure is likely low, since 56 agencies failed to respond to a Government Asset Forfeiture Report Form. Of the agencies that did respond, 332 reported asset forfeitures and 298 reported none.
Police are not required to file an annual report with the state detailing their forfeitures, although the proposed laws, which are awaiting Gov. Rick Snyder’s signature, would make it mandatory.
Bill 4499 would increase the burden of proof required to forfeit property in drug and public nuisance cases. Instead of the current threshold of “preponderance of the evidence,” the law would require “clear and convincing” evidence that the forfeited property was used to commit a crime.”
A Michigan man has been living a nightmare. He lost custody of his son after a felony marijuana bust, even though he has a valid medical marijuana card.
Max Lorincz is fighting to clear his name after he was accused of possessing synthetic marijuana. His bizarre case has revealed how politics might influence pot prosecutions in Michigan.
Lorincz claims he suffers from a debilitating back injury. He says when he traded prescription drugs for this edible candy containing marijuana his symptoms got better.
But it was a small amount of hash oil that landed Lorincz in the weeds.
Police found it when paramedics came to his house on an unrelated medical emergency. Prosecutors charged Lorincz with a felony after the state crime lab determined his hash oil came from an “origin unknown,” implying it is synthetic.
Michigan’s medical marijuana law says only leaves and flowers are legal, and concentrates are a crime.
“I’ve had to go back to the narcotic pain medications, and it’s just terrible,” said Lorincz.
Lorincz tells Crime Watch Daily Grand Rapids affiliate WXMI as his case wound its way through the system, he was forced to go back on powerful painkillers.
“The doctors are telling me one thing, the judge is saying another, and when I followed my doctor’s recommendations, that’s when my health started to get better,” Lorincz said. “Going back and following what the judge is saying, my health’s just been deteriorating ever since.”
Max Lorincz says what was worse was losing custody of his 6-year-old boy. In court a social worker testified against Lorincz, saying his use of marijuana, even if it is legal, may make him an unfit parent.
“This is a political decision,” said Lorincz’s lawyer Michael Komorn.
Komorn claims prosecutors influence the state lab to misreport results so they can get more convictions.
“What is unique about this case is they are relying on the lab to report these substances so they can escalate these crimes from misdemeanors to felonies,” said Komorn.
A former lab director says Komorn’s claims are true.
“So it was in my experience, it was just a nonstop political game that really got frustrating and it wore down the morale of our staff, and quite honestly it wore me down,” said John Collins, a former lab director.
Collins quit his job as director of the state lab after he says he was pressured to produce results that favored the prosecution.
“Our laboratories are not in the prosecution business, they’re not in the conviction business, they’re in the science business,” said Collins.
The Michigan Prosecuting Attorneys Association is denying those claims from Lorincz and his attorney.
As for Max Lorincz, he’s now off the hook. A judge dismissed the felony charge, saying there was no evidence to prove the hash oil was synthetic.
Lorincz and his wife are reunited with their son.
“It’s like a hundred pounds has been lifted off my chest,” said Lorincz. “It’s like our entire life was put on hold the entire time he was gone.
“We’ll try and have as many positive memories as we can to make up the gap but there’s definitely nothing that makes up for the time that we lost, that’s for sure,” said Lorincz.
In July of 2014, the St. Clair County Drug Task Force (DTF) raided the home and business of Annette and Dale Shattuck, a couple who owned a medical marijuana dispensary in Kimball, Michigan.
The Shattucks were at their dispensary, DNA Wellness Center, when DTF agents arrested them, the Washington Post reported. Meanwhile, their four young children were playing at home under the supervision of their grandmother.
“DTF busted in the door that morning, a no-knock, battering ram entry,” reads a briefing filed by the Shattuck’s attorney “During the dynamic entry, armed DTF officers wearing ski masks separated the children from their grandmother at gunpoint, shouting at her to get the dog under control or they would shoot it. The deputies kept the children lined up on the couch at gunpoint, refusing even to remove their masks to help calm the kids, including two three-year-old toddlers.”
[Note: The Shattuck’s Attorney is Michael Komorn. – A well known and highly experienced lawyer for Michigan medical marijuana cases].
A sheriff for the task force told the Washington Post that these claims were a “misrepresentation,” saying there was “no way in hell” officers would point their weapons at children. He did, however, acknowledge that it’s standard practice for officers to draw their weapons in such raids.
Perhaps no story illustrates the confusion surrounding medical marijuana’s legal status better than that of the Shattucks—a couple who went extra lengths to ensure their compliance with state laws.
The Shattucks obtained the necessary permits and licenses from their local planning commission. The landlord of the building where the dispensary was housed gave his permission in the lease. Bill Orr, the chairman of the commission, thanked the Shattucks for “following the ordinance and taking the necessary steps to open the business within Kimball Township in the manner required,” according to court documents.
Annette, a registered caregiver with the state, personally called the DTF and requested an inspection of DNA Wellness to insure that the business complied with state law. But instead of conducting an inspection, the task force decided to send confidential informants into the dispensary to make purchases, which they then used as probable cause for a raid.
Annette and Bill were charged with felony possession with intent to distribute and possession with intent to manufacture marijuana.
The Shattucks’ plight is one of many that show how confusing, patchy medical marijuana laws harm businesses and upend lives. Businesses and caregivers in MMJ-legal states are subject to conflicting signals from different government entities. Even though the federal government does not allow federal funds to be used against cannabis companies operating legally under state laws, the state laws themselves are murky and open to interpretation.
Michigan’s legislature needs to enact clearer laws regulating the cannabis industry—the current law does not address the legality of dispensaries and does not allow for marijuana to be sold from them. The ambiguous rules are not just a problem for those in the marijuana industry:
“The Michigan Supreme Court has spent countless hours adjudicating a total of eight cases involving medical marijuana since the Michigan Medical Marijuana Act was passed in 2008,” reports Downtown magazine.
Supreme Court justices and local governments have pressed the state’s legislature to do something to clarify the laws. But attempts to do so have been stagnant: A trio of medical marijuana bills that have been approved by the House are now languishing in a Senate committee. One of them would establish a licensing system for retailers, growers and distributors.
Meanwhile, 53 percent of voters say they would approve a ballot initiative to completely legalize and tax marijuana, according to a recent poll.
While voters want the plant to be legal and regulated, lawmakers seem not to be prioritizing the issue, putting patients, caregivers and business owners at the mercy of an arbitrary system.
A judge recently threw out the charges against the Shattucks, ruling that the government can’t prosecute you for a “crime” that another arm of the government approved. But unfortunately for the family, the consequences still linger.
Their 10-year-old daughter has been in counseling for more than a year to deal with the trauma as a result of the raid. The DTF has not returned all of their property, and the property that has been returned is damaged. The couple continues to struggle with the burden of legal fees and finding work—though charges have been dropped.
In the absence of federal progress on marijuana policy, states with any sort of legal cannabis, have a duty to responsibly regulate the industry. Whether they have passed useless CBD legislation or have voter referendums, too many states are sitting idly by as local jurisdictions and individuals try to navigate the haphazard laws, sometimes—as in the case of the Shattuck family—with ruinous results.
