Police grabs of civilian cash stir legislative revolt

Melissa Nann Burke
Detroit News Washington Bureau

The controversial police tactic of seizing cash and other property without a warrant or indictment is generating a backlash in Michigan.

The state House and at least two members of Michigan's congressional delegation are trying to put restrictions on state and federal law enforcement's seizure of property that officers suspect of being involved in criminal activity — even when charges aren't eventually filed.

Critics such as U.S. Rep. Tim Walberg, R-Tipton, say they want to stop abuses. Law-enforcement officials defend the practice as essential to slowing drug traffickers and fighting crime syndicates.

The push for reform is prompted by stories like that of Joseph Rivers, a Romulus resident who was on a train from Dearborn to Los Angeles when his journey ended abruptly in Albuquerque, New Mexico.

There, a federal agent stripped him of $16,000 in cash that he'd saved to shoot a music video in California.

"My initial reaction was, like, I'm being robbed," recalled Rivers, 22.

The U.S. Drug Enforcement Administration agent wouldn't change his mind even after Rivers put him on the phone with his mother, who confirmed his story.

Rivers was never charged with a crime or formally detained in connection with the mid-April episode. He hired a lawyer to help get his money back, but experts say the process likely will take many months.

Unlike criminal forfeiture, conviction is not required in civil forfeiture. Under the law, the burden is placed on a property owner to contest the seizure within a set time period and prove the property was obtained legitimately. Property owners have no right to counsel or, in most cases, a pre-seizure hearing.

Sean Waite, the agent in charge of the DEA office in Albuquerque, declined to comment on Rivers' case. Officials say agents usually look for "indicators," such as whether travelers buy an expensive one-way ticket with cash, or if they are traveling to or from a city known as a hot spot for drug activity.

Rivers said the agent that day questioned many people in his Amtrak car, but asked to search only his bag. Among his video and music equipment, the agent found the cash — still in the withdrawal envelope from Chase Bank, Rivers said.

"I let him search the bags. I didn't want to seem like I wasn't cooperating," said Rivers, who believes he was targeted because he's young and black.

The agent also checked his record. A gun charge in 2011 landed Rivers two years in prison. He previously received probation for concealed-weapon and felony assault charges.

"That had no relevance to why he was trying to take my money," Rivers said. "I've changed my whole life."

Legislators take action

Experiences like Rivers' have fueled the legislative revolt.

In June, the Michigan House approved an eight-bill package to start reforming the state's seizure process. Michigan ranked among the five states with the least amount of citizen protections against civil forfeiture, according to a 2010 report by the nonprofit law firm, Institute for Justice.

In Congress, Walberg and Sen. Rand Paul, R-Kentucky, introduced a bill this session aiming to ensure the use of civil asset forfeiture is not abused.

"We want to restore people's faith in the system," Walberg said.

He said that because the agencies get to keep the cash or the sale proceeds of the property, they have a financial incentive to "police for profit" by seizing as much as possible.

The Fifth Amendment Integrity Restoration Act, or FAIR Act, would raise the burden of proof in civil forfeiture cases to a "clear and convincing" standard. It would end the program that allows state and local law enforcement agencies to share in up to 80 percent of the proceeds of forfeiture cases they transferred to the federal government.

Supporters of the bill include liberal Democrats such as Rep. Keith Ellison of Minnesota and a diverse array of groups from the National Federation of Independent Business, the libertarian-minded Freedom Works, the American Civil Liberties Union and the Heritage Foundation.

Michigan law enforcement agencies under state law seized or shared in seizure proceeds totaling more than $24 million in 2013, the latest year for which data are available from Michigan State Police. The statistics cover only seizures allegedly connected to drug crimes and not other state laws authorizing civil forfeiture.

"It's bad," said Lee McGrath, legislative counsel for the Institute of Justice. "The problem is a person can be acquitted of all criminal charges in Michigan and still lose all their seized property in civil forfeiture."

Michigan lawmakers are looking to revise the law by raising the seizure threshold in relation to drug statutes to "clear and convincing evidence." The state House package of bills also would boost reporting and transparency requirements for agencies executing seizures — a concept supported by the Michigan State Police, said Sgt. Amy Dehner, legislative liaison for the agency.

Her agency, however, would have a harder time swallowing revisions to deposit the proceeds from civil forfeitures into the state's general fund, rather than going directly to law-enforcement agencies. Part of the concern is the money doesn't always "trickle down" as intended, she said.

Other states have looked at adding extra protections for residents, such as lengthening the time to contest a forfeiture or shifting the burden of proof.

Chuck Canterbury, national president of the Fraternal Order of Police, told the U.S. Senate Judiciary panel in April that his group agrees with the need for reform, but questioned why Congress wants to make it harder for officers to do their jobs.

"At a time when the number of officers is declining, federal assistance to state and local law agencies is evaporating and deliberate attacks on law enforcement officers are rising, how can this issue be a law-enforcement priority?" Canterbury asked lawmakers.

Federal program for seizures

Even in states such as New Mexico that banned civil forfeiture, police there still seize property under the federal Equitable Sharing Program.

Law enforcement agencies in Michigan have participated in nearly 800 federal seizures since 2001, which resulted in the taking of $47.7 million, of which $35.1 million was returned to local agencies, according to an analysis of Department of Justice data by the Washington Post.

In 2013, the Internal Revenue Service seized $35,651 in the bank account of Schott's Market in Fraser without warning. The agency claimed the funds had been illegally "structured" to avoid bank reporting requirements of cash transactions of $10,000 or more.

The owner, Terik Dehko of Bloomfield Hills, and his daughter, Sandy Thomas, said they didn't want to store large amounts of cash in the store where it could be vulnerable to theft, so they made weekly deposits. Their insurer at the time would insure only up to $10,000 in the case of a robbery, Thomas said.

"I was really just upset that the government could do this to us," she said.

They were headed for trial when the government abruptly dropped the case. The money was returned months later, but the experience wore on Dehko, now 70. After 37 years in business, he sold the store in March.

"He just didn't want to deal with it anymore," Thomas said.

The Justice Department opposes several reforms under consideration in Congress. The agency says raising the standard of proof might have the unintended consequence of rewarding criminals.

In January, then-Attorney General Eric Holder Jr. prohibited federal agencies from "adopting" local seizures into the Equitable Sharing Program. But loopholes still permit local and state seizures stemming from joint operations and those under warrants issued by federal courts.

Darpana Sheth, an attorney with the Institute for Justice, noted the policy can be changed by a future administration.

"Of course, the DOJ isn't going to want to sign off abandoning a $4.5 billion pot of money," Sheth said. "This is actually a very good compromise bill. It keeps civil forfeiture but removes the profit incentives."


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