Key Part of Civil Asset Forfeiture Law Ruled Unconstitutional

Bond requirement challenged at Court of Appeals

It is a basic principle of American law that the government may not deprive citizens of their property without due process. But, according to the Michigan Court of Appeals, at least one Michigan statute lets the state do exactly that.

When Shantrese Kinnon and her husband were arrested on drug charges in Kent County, the police searched her home and seized some property, including a GMC Denali, a Chevrolet El Camino, a motorcycle, a tablet, a laptop, and nearly $400 in cash from her purse.

Even though the couple had not yet been convicted of a crime, a scheme known as civil asset forfeiture allows law enforcement to keep the property with the burden of proof on the Kinnons to get it back. Shantrese tried to challenge the forfeitures of the seized items and get her property back but found she couldn’t afford to. The state requires her to post a bond equal to 10 percent of the value of the property – over $2,000 – before it proceeds.

But Kinnon was only able to come up with a little over $1,000, meaning that she was only able to challenge the forfeiture of the items that she could afford to post bond for. She would automatically lose her ownership rights to the others, even if she were innocent of the charges.

When her case went to trial, Kinnon argued that her rights to due process and equal protection had been violated. The bond requirement, she said, causes poor people to lose their property when they are not financially able to contest the forfeiture. By contrast, she continued, people with better resources can afford to pay the bond and make a case to get their property back.

The Court of Appeals agreed. It held the bond requirement unconstitutional, ruling that “Because of her indigency and inability to pay the required bond, [Kinnon] was excluded ‘from the only forum effectively empowered to settle [her] dispute.’ … Ultimately, Michigan’s civil asset forfeiture scheme operated to deprive [Kinnon] of a significant property interest without according her the opportunity for a hearing, contrary to the requirements of the Due Process Clause.”

State Rep. Peter Lucido, R-Shelby Township, hopes the ruling will generate support for a bill that would remove the bond requirement. The Mackinac Center testified in support of the bill and has repeatedly called for other reforms to civil asset forfeiture, including a condition that a criminal conviction must be secured before property can be seized.

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.