Class-action suit challenges civil forfeitures
Stephen Nichols didn’t have valid insurance when he was pulled over by Lincoln Park police on July 2, 2015, so his car was seized and towed away.
More than three years later, the 1998 Toyota Avalon is still sitting in a Brownstown Township impound lot as Nichols awaits a hearing to get it back.
Nichols, 42, is part of a class-action federal lawsuit filed last month by him and two other people whose vehicles were seized by police. The suit alleges their 14th Amendment due process rights were violated.
“Mr. Nichols still hasn’t had a hearing, which is ridiculous,” said Shaun Godwin, attorney for the plaintiffs. “The law says prosecutors have to bring a case promptly, but it’s not defined under the law what ‘promptly’ is.”
Wayne County prosecutors and sheriffs are defendants in the lawsuit. The county’s corporation counsel, which is handling the suit, did not respond to requests for comment.
Ed Zelenak, attorney for Lincoln Park, which also is named in the lawsuit, said Nichols pleaded guilty to having fraudulent insurance, and that the holdup in his case is likely due to a backlog at the understaffed prosecutor’s office.
The lawsuit, which seeks unspecified damages, comes as the practice of civil forfeitures is being scrutinized in Michigan and nationwide.
In May, the state House approved a bill that would require police in Michigan to secure a criminal conviction before seizing property. The bill is being debated in the Judiciary Committee.
The U.S. Supreme Court agreed last month to hear the case of an Indiana man whose $40,000 Land Rover was seized after he pleaded guilty to selling less than $200 worth of drugs. The High Court will decide if the seizure violated the Eighth Amendment’s ban on “excessive fines.”
Critics of civil forfeitures say they violate the presumption of innocence by punishing people before they’ve been found guilty of a crime. Supporters of the practice insist forfeitures help police fight drug dealers and other criminals.
U.S. Attorney General Jeff Sessions last year announced he would revive civil forfeitures at the federal level. He said seizures provide a “key tool that helps law enforcement defund organized crime, take back ill-gotten gains and prevent new crimes from being committed.”
Sessions issued a directive reinstituting the Department of Justice’s Equitable Sharing Program, which allowed state and local law enforcement agencies to seize money and property, and then transfer those assets to federal control. The program allowed local agencies to bypass state regulations that limit how forfeiture funds are used.
Sessions’ announcement drew criticism from across the political spectrum. Supreme Court Justice Clarence Thomas said he doubted civil forfeitures were constitutional.
“This system — where police can seize property with limited judicial oversight and retain it for their own use — has led to egregious and well-chronicled abuses,” Thomas wrote. “Whether this Court’s treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.”
The Supreme Court has rejected previous challenges to civil forfeitures, including the landmark 1996 case of a Royal Oak woman, Tina Bennis, who argued her car was improperly seized because she didn’t know her her husband had used it to pick up a prostitute.
“Normally, the Supreme Court has looked at these cases as violations of the Fourth Amendment (which covers probable cause and unreasonable search and seizure), and they’ve been upheld, but now they’ll look at it from a different perspective,” said Jarrett Skorup, a policy analyst at the Mackinac Center for Public Policy, a Midland-based free market think tank.
“The argument the court will now hear is that forfeitures constitute an unreasonable fine on people’s assets,” Skorup said. “It’ll be interesting to see how they rule.”
Previous High Court rulings have found that while people have rights, their property doesn’t. In civil forfeiture cases, the defendants are the property, not the owners.
Michigan lawmakers in recent years have taken steps toward curbing civil forfeitures, Skorup said.
“I think the state has made some progress,” said Skorup, who in 2015 co-authored a report for the Mackinac Center that identified problems with the state’s forfeiture practices and offered recommendations — some of which have been adopted.
One of the recommendations was to require more transparency by law enforcement agencies that confiscate property.
“When I first started on this five years ago, we tried to require a yearly report, but we couldn’t get a hearing in committee,” Skorup said. “Since then, they’ve mandated an annual report.”
Skorup said police in Michigan during most of the 2000s seized an estimated $20 million-$25 million in assets annually. “But the first time they had to put a report out (in 2017, which covered 2016), that went down to $15 million,” he said.
Last year, police in Michigan seized about $13 million in assets, according to the state police 2018 Asset Forfeiture Report, which was released June 30 to the Mackinac Center and is set to be released to the public soon.
Among the findings in the 2018 report, which was provided to The News:
Law enforcement forfeited $11.8 million in cash and $1.3 million in property, including eight homes, 711 weapons and 7,999 vehicles.
Of the 2017 forfeitures, 736 people were not charged with a crime, with another 220 were charged but not convicted. Another 228 weren’t charged because they cooperated with prosecutors. Only 43 percent of those whose property was forfeited were charged and convicted.
“The rest were either not charged, found innocent, cooperated or are still pending,” Skorup said. “This is problematic because it means that the state took ownership of their property before proving these citizens were guilty of anything.”
The majority of Michigan’s law enforcement agencies did not initiate civil forfeitures. Of the 673 local police departments, sheriffs offices and prosecutors in Michigan, only 265 agencies seized property. Only five prosecuting attorneys prosecutors out of 83 counties in the state handled seizures.
Only 25 percent of the forfeiture cases last year went to court.
“That’s because the vast majority of people didn’t contest the claim of the property,” Skorup said. “In many cases, that may be because they knew they were guilty. But in others, as is common, they may simply have decided it wasn’t worth it to hire an attorney to get back a few hundred dollars or an inexpensive vehicle.”
Nearly all of the proceeds from forfeited assets went back to the local law enforcement agencies that initiated the seizures. They spent 36 percent on equipment, 9 percent on vehicles, 8.5 percent on personnel, 5 percent on training and the rest on other areas, including K-9 units and supplies.
Among otherrecent tweaks to Michigan forfeiture law: In 2015, the standard needed to seize property went from the preponderance of evidence, which requires that more than 50 percent of the evidence points to wrongdoing, to clear and convincing evidence, which has a 75 percent requirement.
Prior to last year, Michigan was one of only five states that required people to post a bond if they wanted to try to get their property back. Anyone seeking the return of seized property was required to post 10 percent of its value. That requirement was eliminated by the state Legislature.
Robert Stevenson, director of the Michigan Association of Chiefs of Police, said his organization had no problem with lifting the bond requirement and the higher proof of evidence needed to seize property — but he said he opposes the pending legislation that would require conviction before seizure.
“I’d like to see if the recent changes have an effect before throwing the baby out with the bath water,” said Stevenson, a former Livonia police chief. “We supported the other recent changes, but not this proposal.
“I don’t think it’s a good idea to require a conviction before you can seize property,” Stevenson said. “Let’s say you raid a dope house and find drugs and a lot of money. In order to get a criminal conviction, you’d need to give that money back to them, even though it’s clearly proceeds from drug trafficking.
“So if you do get a conviction, where do you think that money will be? By the time the case gets through the court process, that money would be long gone.”
Stevenson said forfeiture laws also help the quality of life in poor neighborhoods.
“Let’s say you have a slumlord where renters are dealing drugs out of the house,” he said. “If police raid it, you can have an innocent owner defense: ‘I didn’t know this was happening.’ That’s true the first time, but if you repeatedly have violations and don’t do anything about it, your house is forfeited.
“If we had to have a conviction first, we’d never be able to convict the homeowner, so there’s no incentive for him to stop allowing this activity,” Stevenson said. “That impacts the poorest communities. It’s not good for people who live in these neighborhoods to allow property owners a pass on what happens on their property.”
But some critics, including 36-year-old fence installer Ryan Chappell, insist police abuse their power to seize property.
Chappell said Wayne County sheriff deputies took his father’s 1996 Jeep Grand Cherokee “for no reason” on July 27, 2016. Chappell and his father, Adam Chappell, 61, are part of the class-action lawsuit against the county.
Ryan Chappell said he was driving his father’s truck when he briefly ducked into a medical marijuana facility.
“I had just got off work and stopped at the store sharing the parking lot with the dispensary,” he said. “Then I stopped in the dispensary, went in and walked right back out. I asked them a quick question.”
He said he was stopped by police as he neared his house on Detroit’s west side.
“They didn’t even search me,” he said. “They didn’t give me a reason why they were towing my car. I was furious. I asked ‘how am I supposed to get to work tomorrow? You got my vehicle.’ (The police said) ‘figure it out.’ I ended up bumming a ride.”
Ryan Chappell was never charged with a crime. “But they had my truck for so long, I had to buy another vehicle,” he said. “Then, I had to take off work to go down there three times, but they kept rescheduling (the hearing with prosecutors), giving me the runaround.”
Ryan Chappell retained Godwin, who challenged the forfeiture.
“We asked for discovery; let’s see your evidence, let’s see the police reports, turn over all those things,” Godwin said. “And the Wayne County Prosecutor’s Office wasn’t able to do that.
“We were about to have a hearing to compel them to produce that information, and then they agreed to dismiss the case and give back the vehicle without any of the towing and storage fees,” Godwin said.
But when he got his vehicle back, Ryan Chappell said the transmission was damaged. “I can’t even drive it,” he said.
Godwin said an officer wrote in his police report that Ryan Chappell had told him he’d bought $15 worth of marijuana from the dispensary.
“That’s very interesting, because there’s nothing listed that he recovered any marijuana,” Godwin said.
Ryan Chappell added: “That’s a lie. I never told the officer I’d bought any marijuana.”
Godwin said he hopes Michigan becomes the 15th state to require a conviction before property could be forfeited — but barring that, he said there should at least be prompt hearings.
“Due process requires a hearing,” he said. “If they do not give you a hearing prior to taking your property, then they need to give you a prompt hearing after they take it ... within a week.
“These cases need to be heard by a judge immediately, and the judge needs to be able to decide if they should give the vehicle back pending the outcome of the case.”
Adam Chappell said police who seize property without seeking charges are abusing their power.
“These people got badges; they do what they want to do,” he said. “Ain’t nothing you can do. They should’ve given him a ticket at least. How can you take someone’s vehicle and not even write him a ticket for anything? The police are like gangsters; they just take what they want.”
Ryan Chappell added: “I want be compensated for all the headaches. I lost my transportation to get to work; I had to get another vehicle. It was a pain to get the new insurance, plates, work on the new vehicle. All for nothing.”
Stevenson said there have been individual cases where it appears police may have overstepped their authority — “although a lot of times, when you dig deeper, you find out there’s more information you weren’t told initially.
“One of the people who testified (during previous Legislature hearings) talked about how the police took his car for no reason,” Stevenson said. “We got in touch with the police department and found out the story behind the story: It turns out the car was seized because it had stolen parts on it.”
Stevenson added: “Even in those cases where there may have been something improper, the person gets their day in court. It would be ludicrous for police to just take stuff from people. Police have to present a case, and now they have to show clear and convincing evidence.
“You don’t want to make law based on a few bad cases,” Stevenson said. “Are there a few cases where an innocent person gets their property taken? Yes — but you don’t base the law on those few cases. Maybe tweak the law a bit.”
Skorup, of the Mackinac Center, said conviction should come before forfeiture.
“Nobody should lose their property until they’ve been convicted beyond a reasonable doubt,” he said. “Then, after the conviction, the court should decide if their assets were part of that criminal activity.
“If someone has a small amount of marijuana on them, that doesn’t mean their car should be seized,” Skorup said. “That’s ridiculous.”