Bipartisan House bill would bring transparency to law enforcement seizing property without criminal charges
Imagine you own a restaurant. A patron visits with a marijuana joint tucked in his pocket. Suddenly, the police storm in, arrest the man for possession and inform you that they are taking your business, selling it, and pocketing the profits to help fight crime in the state.
An impossible violation of your rights? No.
While the above situation is extreme, similar situations have happened in Michigan and around the country. The practice is known as civil asset forfeiture.
In fact, the federal government took in more than $4 billion in 2012 through the practice, according to the Institute for Justice, a libertarian public interest law firm that represents many people charged in forfeiture cases.
"Forfeiture allows law enforcement to take property without even charging people, never mind convicting them of a crime," said Lee McGrath, legislative council at the Institute for Justice (IJ). "Worse, Michigan's current laws give police officers and prosecutors incentives because forfeiture proceeds go to supplement their budgets. And law enforcement gets to choose which crimes it pursues and cases it prosecutes."
Michigan got a "D-" for its forfeiture laws, according to an IJ study published in 2010. According to the study, "Policing For Profit: The Abuse of Civil Asset Forfeiture," government agencies seized $149 million worth of assets from 2001-2008.
But a new bill seeks to change that in Michigan. House Bill 5081 would "give taxpayers the ability to see the full picture of what assets are seized, whether the person was ever convicted of a crime, the value of the assets, and other details pertaining to the process."
It was introduced Wednesday by Reps. Tom McMillin, R-Rochester Hills; Rose Mary Robinson, D-Redford Township; Doug Geiss, D-Taylor; Harvey Santana, D-Detroit; Jeff Irwin, D-Ann Arbor; Martin Howrylak, R-Troy; Joel Johnson, R-Clare; Mike Callton, R-Nashville; and Frank Foster, R-Petoskey.
Rep. Geiss said the bill, "sheds sunlight on what type of materials or dollars are being forfeited and what is being done with those."
"The goal should be that we have zero forfeitures," Rep. Geiss said. "But the reality is that a lot of departments base their budgets on recurring forfeiture dollars. There have been allegations in the state of Michigan that monies have not been used properly and inventory has not been maintained. I think the bill puts a structure in place that everyone has to follow, with a central repository. It is my hope that this will make sure funds are not diverted and confiscated property is tracked."
There have been many prominent cases of forfeiture in Michigan:
- In January, the Dehko bank account of the family grocery store in Fraser was seized by federal agents. Federal law requires banks to report transactions above $10,000 and the government says store owner Terry Dehko was avoiding this by making slightly smaller deposits to the bank. But Dehko says he has an insurance policy that will not cover him for loss or theft over $10,000, thus, he often makes deposits in the $9,000 range. The family has not been charged with a crime, but the government has seized $35,000.
- In 1997, 100 federal agents stormed the home and businesses of 70-year-old Joseph Puertas in Clarkston, alleging a major cocaine operation. Police never found any drugs, but found a lot of cash and used that to charge him with several crimes, most of which were thrown out in court. The government seized the family’s $3.2 million bowling alley and over $2 million in other assets, some of which was owned by other family members not charged with a crime. Puertas eventually was convicted based on the controversial testimony of a drug addict who claimed he bought cocaine at the bowling alley, though undercover officers and surveillance from police never documented a sale. His sentence was later commuted by Gov. Jennifer Granholm.
- Ann Arbor artist, Judy Enright, added feathers she found on the ground to a painting and had her work seized by U.S. Fish and Wildlife officials in 1993. She was not charged with a crime.
- Detroit police raided Joseph Haji’s market for a drug arrest in 1988. There were no drugs, but a dog reacted to three $1 bills in the cash register and that was enough for officials to seize all of the store's money, totaling $4,384. Haji was never charged with a crime.
- Federal agents suspected James Fouch and his two sons of engaging in a loan fraud scheme in 1992. They raided their Grand Rapids home, eventually auctioning off the property and seizing $500,000 in cash and sales revenue. No criminal charges were ever filed against the family.
- One Michigan case, Bennis v. Michigan, went all the way to the Supreme Court. John and Tina Bennis jointly owned an automobile that the husband used in a criminal act with a prostitute. Despite not being involved in the crime (for which John was convicted and fined $250), the vehicle was seized and sold by police.
"Law enforcement agencies across Michigan seized nearly $85 million in property from residents over the last three years," McGrath said. "Nearly $70 million of those funds went to supplement the budgets of prosecutors and police agencies … Michigan's current reporting system is lacking."
The American Legislative Exchange Council has suggested model legislation on asset forfeiture bills that would greatly enhance transparency. Cara Sullivan, director of the Justice Performance Project with the group, said she thinks property seizings are a problem across the nation.
"Oversight is needed to ensure forfeiture is not used to seize the private property of innocent Americans," Sullivan said. "Policies that require agencies to report the circumstances under which property is seized increase government transparency and accountability."
The IJ's McGrath said "forfeiture proceeds are no different from taxes."
"[The bill] will improve the information state legislators receive about law enforcement's priorities; what crimes the seizures are associated with; whether Michiganders are being convicted before they lose their property; and related information," he said. "I am thrilled that the bill has such bipartisan support."
Kenneth Grabowski, legislative director of the Police Officers Association of Michigan, said the group, "supports the concept, but has not had the opportunity to review the bill in detail."