How a sex toy put spotlight on Michigan civil asset forfeiture laws targeted for reform

Jun 4, 2015 | Criminal Defense Attorney Michael Komorn, Komorn Law Blog, News

The headlines read…

“How a sex toy put national spotlight on Michigan civil asset forfeiture laws targeted for reform”

“State Legislators Reconsider Forfeiture Laws That Turn Cops Into Robbers”

“Why Take My Vibrator?” Cops Legally Rob “every Belonging”

It’s been featured on many news outlets large and small.

Some of the main ones include Fox,  MLive, Forbes,  Washington Post, MMMA, and so many more.

Ginnifer Hency says that a police raid led investigators to seize a couple of guns, a small amount of cash and cell phones , medical marijuana. And also something very personal…

“My medicine for my patients, why a ladder, why my vibrator, I don’t know either,” Hency said during a Michigan House Committee meeting.

Click to play video

Ginnifer Hency’s vibrator was not an accessory to an alleged crime that a judge says did not occur. And that last part is creating quite a story that has now gone viral and raising questions about Michigan’s civil asset forfeiture laws.

“They’ve had my stuff for 10 months now,” Hency said.

Ginnifer and her husband Dean Hency say it all happened when their home was raided last July. They both are licensed medical marijuana patients and caregivers. They claim to be targeted by St. Clair County’s drug task force.

It began when Ginnifer says she walked into a medical marijuana licensing facility as it was being raided. “They asked me how much medicine I had in my backpack,” she said. “I said six ounces then they said to get a warrant for our house.”

The havoc they wreaked,” Dean said, “they just threw stuff around. Just dirt dumped all over the place.” “We were in complete compliance with the Michigan Medical Marijuana Act and they destroyed my house,” Ginnifer said.

But St. Clair County Sheriff Tim Donnellon says they were not, and added that officers did not take her vibrator and would never have a reason to. He says aside from that allegation, the task force’s actions were justified and par for the course.

Even so, a judge (read the courts opinion here – specifically the last page regarding Hency) dismissed the criminal charge of possession with intent to distribute against Ginnifer Hency two weeks ago.  But here’s what she says happened when she went to the prosecutor’s office to get her property back.

“Lisa Wisniewski who is the assistant prosecuting attorney said ‘I can still beat you in civil court, I can still take your stuff.”

Michael Komorn who is the Hencys’ lawyer said. “This is bully tactics, we have your property we couldn’t get any charges to stick, we’re just going to keep it and drag it out.”
“Here’s a person who they took her property and they couldn’t even make the charges stick let alone get a conviction. So if there’s an example of why there needs to be reform it’s this.”  added her attorney Michael Komorn.

“They left my (equipment) I used to grow ‘drugs’ – they left that,” Hency said when she testified. “Now that is what the state forfeiture laws are made for.” The St. Clair County Prosecutor’s Office has about a week to appeal a visiting judge’s decision to drop those charges against Ginnifer Hency.

When she heard that, Hency said, “I was at a loss. I literally just sat there dumbfounded.”

Hency told her story at a meeting of the Michigan House Judiciary Committee, which was considering several bills that would make this sort of legalized larceny more difficult.

She was joined by Annette Shattuck, another medical marijuana patient who was raided by the St. Clair County Drug Task Force around the same time.

“After they breached the door at gunpoint with masks, they proceeded to take every belonging in my house,” Shattuck said.

The cops’ haul included bicycles, her husband’s tools, a lawn mower, a weed whacker, her children’s Christmas presents, cash (totaling $85) taken from her daughter’s birthday cards, the kids’ car seats and soccer equipment, and vital documents such as driver’s licenses, insurance cards, and birth certificates.

“How do you explain to your kids when they come home and everything is gone?” Shattuck asked. She added that her 9-year-old daughter is now afraid of the police and “cried for weeks” because the cops threatened to shoot the family dog during the raid.

Although “my husband and I have not been convicted of any crime,” Shattuck said, they cannot get their property back, and their bank accounts remain frozen.

Last February The Detroit Free Press highlighted various other examples of the cruel, greedy pettiness fostered by civil forfeiture laws, which allow police to take assets allegedly linked to crime without so much as filing charges, let alone obtaining a conviction.

“Police seized more than $24 million in assets from Michiganders in 2013,” the paper noted. “In many cases the citizens were never charged with a crime but lost their property anyway.”

Now a bipartisan group of state legislators is trying to reform the laws that have turned Michigan cops into robbers.

The bills, which are backed by House Judiciary Committee Chairman Klint Kesto (R-Commerce Township), would require law enforcement agencies to keep track of all forfeitures and report them to the state police, prohibit the forfeiture of vehicles used to purchase small amounts of marijuana, and raise the standard of proof for forfeitures in cases involving drugs or public nuisances.

“We must bring culpability and transparency to the system and rein in the ability of police to indiscriminately seize the property of innocent citizens,” Kesto says.

Michigan was one of five states that received a D–, the lowest grade awarded, in a 2010 report on forfeiture abuse from the Institute for Justice. Michigan’s “preponderance of the evidence” standard, which allows the government to complete a forfeiture based on any probability greater than 50 percent that the asset is connected to a crime, was one reason for that low grade.

Bills introduced by Rep. Peter Lucido (R-Shelby Township) and Rep. Gary Glenn (R-Midland) would instead require “clear and convincing” evidence, which is more demanding than the current rule but not as strict as “beyond a reasonable doubt,” the standard in criminal cases.

None of the bills addresses another major problem with forfeiture in Michigan:

Law enforcement agencies keep 100 percent of the loot, which gives them a strong incentive to target people based on the assets they own instead of the threat they pose to public safety.

Testifying (play video) before Kesto’s committee on Tuesday, Charmie Gholson, founder of Michigan
Moms United, argued that cops’ financial stake in forfeitures helps explain why the arrest rates for consensual crimes involving drugs and prostitution are so much higher than the arrest rates for violent crimes such as rape, robbery, assault, and murder.

 Charmie Gholson (Image: Michigan House of Representatives)

In Michigan, Gholson said, the arrest rate (the share of reported incidents that result in an arrest) is 82 percent for prostitution, compared to 44 percent for murder, 39 percent for felonious assault, 21 percent for robbery, and 15 percent for rape. “It’s because when they catch you with a prostitute, they take your car,” she said. “Civil asset forfeiture decreases public safety.”

Gholson thinks money from forfeitures should go into the general fund, which would eliminate such perverse incentives. She also argues that forfeiture should require a conviction based on proof beyond a reasonable doubt, which would effectively abolish the practice of civil (as opposed to criminal) forfeiture. The Institute for Justice, which has been fighting forfeiture abuse for years, agrees.

Both of those reforms were recently adopted by New Mexico, which got a D+ in the 2010 Institute for Justice report. The New Mexico law also bars police and prosecutors from evading state limits on forfeiture by pursuing seizures under federal law through the Justice Department’s Equitable Sharing Program.

Last month legislators in Montana, which like New Mexico got a D+ in 2010, likewise voted to require a conviction prior to forfeiture.

But police and prosecutors in Montana will continue to keep all the proceeds from forfeitures, and they are still free to engage in joint forfeitures with the feds, which are subject to a lower evidentiary standard.

Compared to the reforms in New Mexico and Montana, the changes proposed in Michigan are pretty modest. But forfeiture critics hope the new comprehensive reporting requirement will set the stage for more ambitious reform by showing how the profit motive warps law enforcement priorities.

“You need more details about how seizures are happening,” Lee McGrath, legislative counsel at the Institute for Justice, told the Free Press. He said such data will expose the myth that “these forfeitures target big international criminal syndicates.” McGrath called the bills “a solid first step toward the ultimate goal of ending civil forfeiture.”

Michael Komorn is recognized as a leading expert on the Michigan Medical Marihuana Act. He is the President of theMichigan Medical Marijuana Association (MMMA), a nonprofit patient advocacy group with over 26,000 members, which advocates for medical marijuana patients, and caregiver rights. Michael is also the host of Planet Green Trees Radio, a marijuana reform based show, which is broadcast every Thursday night 8-10 pm EST. Follow Komorn on Twitter.