ACLU at the Michigan Capitol – February 22, 2016

Working as a lobbyist for a principled, multi-issue, multi-disciplinary civil rights organization can be daunting at times; juggling the various issues and the cast of interested parties each fighting to advance our own policy position.  It’s definitely part of the excitement. My work is uniquely rewarding, though, when we can align with those interested parties with whom we are traditionally in opposition.

Lately, working with “unusual bedfellows” is becoming increasingly commonplace. One such area of advocacy is in the realm of reforming Michigan’s civil asset forfeiture laws. Unlike criminal asset forfeiture in which property is seized based on a criminal conviction implicating that property, civil asset forfeiture allows the government to seize your property, and sell it, regardless of any criminal conviction.

This system of abuse is nationwide but Michigan is ranked among the worst offenders, receiving a grade of D- based on Policing for Profit: The Abuse of Civil Asset Forfeiture, a comprehensive 2010 report by the Institute for Justice.

And here is why our work on this issue is so rewarding:  In addition to the ACLU, groups like The Tenth Amendment Center of Michigan, the US Justice Action Network, the CATO Institute, and the Mackinac Center for Public Policy have combined efforts to call attention to the lack of oversight and transparency for the millions of dollars being realized by law enforcement based on the sale of seized assets for which there is a complete lack of due process afforded to the citizens whose has been property confiscated. In this video, the Mackinac Center for Public Policy and the ACLU of Michigan team up to address abuses of Michigan’s civil asset forfeiture laws. (We also teamed up with the Mackinac Center to produce this report on civil forfeiture.)

We had some success last year when we advanced bills that received almost unanimous support from both the Michigan House and Senate, leading Governor Snyder to approve bills reforming civil asset forfeiture laws in March, 2015. Those reforms included increasing the burden of proof to confiscate property from “a preponderance of the evidence” to the more rigorous burden of “clear and convincing evidence”.   The new law also requires law enforcement agencies to file annual reports detailing civil asset forfeiture cases and proceeds. This is an example of a 2014 report produced by the Michigan State Police.

At issue right now in our legislature is a bill, introduced by Representative Pete Lucido, R-Shelby Township, and voted with full support from the House Oversight and Ethics Committee chaired by another true champion of reform, Representative Ed McBroom, R-Vulcan.   This legislation tackles the barriers to due process. HB 4321 would eliminate the requirement that an individual who believes their property has been wrongly confiscated must file a bond in the amount of 10% of the value of the confiscated property (based on a valuation, by the way, made by the law enforcement entity that seized the property) in order to go to court for a hearing of determination.  If the bond is not filed within 20 days of the seizure, the law enforcement agency may sell the property and keep the proceeds.

Two recent cases highlight how unfair, and we believe unconstitutional, this “pay to play” system is to Michigan citizens. 

In one case, the police raided the home of Shantrese Kinnon in Grand Rapids because of the illegal activities of Ms. Kinnon’s husband. The police took most of Ms. Kinnon’s property, including computers, cash, and a couple of cars.  Ms. Kinnon could not afford to post the entire bond.  She didn’t have enough cash to post 10% of the value of all the things that were taken. 

Ms. Kinnon took her case to trial and the judge found that the property wasn’t related to the illegal activity and ordered her property returned.  But because she couldn’t afford to post full bond the police had already sold her car without ever giving her the chance to prove that – like the rest of her things – it was illegally acquired under civil asset forfeiture.

The ACLU litigated a similar case in Alpena County. There the police took almost $20,000 from Carmen Villeneuve, alleging that the money was from drugs.  Ms. Villeneuve claimed the money was from a car accident.  But because the police had taken all of her money, she didn’t have $2000 to post bond. And Ms. Villeneuve was denied a hearing. Only after an appeal was filed did the prosecutor agree to a hearing.

These cases are symptomatic of civil asset forfeiture cases across the state. It is fundamentally unfair for the government to take your property, and then deny due process unless you can pay for it.

Michigan citizens should not have to buy the due process afforded by our Constitution, and this bill would guarantee that right. 

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