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Civil Asset Forfeiture Reform Is First Horse Out Of The Gate

January 15, 2019

A drug dealer would have to be convicted before police could keep, through civil asset forfeiture, money or property seized as proceeds of the crime, under legislation introduced Wednesday, the first two bills of the new legislative session.

Republican House Speaker Lee Chatfield (R-Levering) and the Democratic Attorney General Dana Nessel are combining forces to start off the 100th session of the Legislature by pushing legislation to reign in law enforcement officials in cases of civil asset forfeiture. Chatfield invited Nessel to the House floor following opening day for a press conference to unveil HB 4001 and HB 4002.

The press conference also included bill sponsors Rep. Jason Wentworth (R-Farwell), a former police officer, and Rep. David LaGrand (D-Grand Rapids) as well as new Minority Leader Rep. Christine Greig (D-Farmington Hills).

Wentworth called the bills “just common sense.” The bills would require a conviction before police could keep seized money or property under $50,000 in value. Over that amount, the current rules would remain in effect, allowing for seizure without a conviction. Proponents say that will allow police to confiscate large sums of cash from major drug dealers.

“This solution is simple,” Wentworth said. “It allows officers to seize property based on probable cause, but requires a criminal conviction before law enforcement agencies can sell or use the property. This will ensure an individual’s personal property can easily be returned if they are found not guilty.”

He said the bills would ensure innocent people aren’t treated like criminals and protect their due process rights.

Nessel said she agrees with the bills “in concept,” but there are minor areas she feels need some work.

“I’ve had so many of these cases during the course of my career, so I’ve had the opportunity to see how it really impacts people,” Nessel said. “When you talk about ensuring due process for everyone, this is an important step in the right direction.”

She said she believed the bills would be a help to law enforcement by improving the relationships that police have with the community.

“The whole concept of it is it doesn’t require anybody to be even charged with a crime much less convicted. I really saw some great abuses of people who, honestly, had done nothing wrong and had their assets taken from them. It is very, very difficult to fight the system, getting a lawyer and navigating the justice system. Frankly, I do find it to be a violation of due process,” Nessel said.

The bills count as a re-introduction of legislation that died last session in disagreement between the House and Senate. 

The Senate wanted county prosecutors to be given the power to immediately review seizures to determine whether property should be returned. The House wanted to tie civil asset forfeiture to a criminal conviction.

However, the House’s champion of this legislation last session was now-Sen. Pete Lucido (R-Shelby Twp.), who now is the Senate Judiciary Committee Chair, which may clear the way for a quick compromise.

Robert Stevenson, executive director of the Michigan Association of Police Chiefs, is not convinced. His association opposed the bills last year.

“So, if somebody has $50,000 of known drug proceeds, they are a big dealer, but if they have $49,999, now they are little dealer and they get to keep their money. That makes no sense at all. Either it is drug proceeds or it isn’t drug proceeds,” he said.

Stevenson used the example of a raid on a drug house after the dealer had sold off his supply. Police wouldn’t be able to charge, because the drugs are gone. But police might know it’s a drug house because of an informant buy, drug ledgers or even be able to show that the dealer had the informant’s buy money. In that case, under these bills, police would still have to let the dealer keep the cash, he said, including the informant’s buy money.

“If I were a regular citizen, I would be concerned with that scenario happening,” Stevenson said.

Chatfield promised lawmakers would work with law enforcement on the bills to make sure “they can continue doing their jobs.”

Stevenson said the state has already reformed civil asset forfeiture in recent years. Police are now required to “prove by clear and convincing evidence that it is drug assets.” He said the legislature should wait to see if those reforms resolve citizen concerns about the process before plowing forward.

The 2017 laws created new reporting requirements. Those showed in ’17 Michigan law enforcement agencies still confiscated $13.1 million worth of cash and property through civil asset forfeiture. In more than 200 cases, people who were found not guilty were forced to forfeit their property. In 736 cases, charges were never filed.

“I’ve been on both sides of litigation on asset forfeiture as an assistant prosecutor and an attorney, and I’ve seen firsthand that many citizens facing asset forfeiture are confused, don’t know how to proceed, and lack the resources to defend themselves,” LaGrand said. “This plan allows law enforcement to go after bad actors, while providing better protections for our citizens and their legitimate property interests.”

Charlie Owens, of the National Federal of Independent Business (NFIB), applauded the introduction of the bills. Acknowledging the previous reforms, he said 74 percent of his group’s members still want additional changes.

“Many small business owners carry large cash sums to the bank and to other business locations for use in making change or deposits and other small business owners still use cash to make large supply purchases,” Owens said. “All of these and other scenarios create a situation where a small business is exposed to the potential of civil forfeiture seizures.”

He also said landlords may have tenants who are engaged in illegal activity, without the property owner’s knowledge, and the landlord’s assets could be subject to seizure without a criminal charge ever being filed under the existing rules.

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