Federal court severely curtails civil asset forfeiture in Michigan

Wayne County, which includes the city of Detroit, has long run a program where it seizes cars and cash from people police say might be involved with illegal drugs or prostitution. The problem? Most are never criminally convicted of or even charged with a crime.

Now a federal court has severely curtailed this program. The U.S. Court of Appeals for the Sixth Circuit ruled last week that the program’s heavy restrictions on appeals by property owners violate the due process clause in the U.S. Constitution’s 14th Amendment. The ruling only applies to this program, but the U.S. Supreme Court has a similar case on its docket, so a broader precedent may soon be set.

Wayne County law enforcement officers seize vehicles based on probable cause, often related to people driving or parking in areas where illicit drug use and prostitution is suspected. After having their vehicle seized, people are offered a deal: Pay a fine of around $1,000 and get their car back immediately or risk having it forfeited to the county government. The county can then sell the vehicle and pocket the proceeds.

People can challenge a forfeiture in court, but it is expensive and time consuming. Most make the rational decision to just pay the fine or abandon their property, rather than spending thousands on an attorney and waiting months to get in front of a judge.

That was the subject of a lawsuit filed by the Institute for Justice. It takes people up to a year even to get a hearing on a challenge to a seizure. The court ruled that this period was too long, and the hearing needs to happen within two weeks (one judge argued that it should be within 48 hours).

Here’s how the court described the key plaintiff and her situation:

Stephanie Wilson, at the time the complaint was filed, was a 29-year-old single mother studying to become a nurse at Wayne County Community College. She had two vehicles seized under Michigan’s Controlled Substances Act. The first seizure occurred in January 2019. Wilson drove to pick up Malcolm Smith, who is her daughter’s father. As soon as Smith entered the car, Detroit officers ordered them to exit without explanation. Wilson asserts no drugs, guns, or cash were found, and no one was arrested. But Wilson’s car was still seized for violating Michigan’s Controlled Substance Act.

The officers provided her with a notice of seizure, which required her to contact the Wayne County Prosecutor’s Office in no fewer than three, and no more than twenty, business days. The following day, Wilson attempted to contact the Vehicle Seizure Unit, but the county would not speak to vehicle owners outside the provided time frame. She then visited the Unit in person four days after the seizure but was turned away because her paperwork could not be found.

Two weeks later, she visited again in person, but was told it was too late to contest the seizure. So, she had to abandon her vehicle. Wilson spent over a month without a car before purchasing a new one with money from her tax refund.

In response to lawyers for the county who defended the program as a means to combat drugs and prostitution, Judge Amul Thapar asked: "Does this sound like a legitimate way of cleaning up Wayne County? Or does it sound like a money-making scheme that preys on those least able to fight it?"

The federal 6th Circuit Court found the program to be unconstitutional. The ruling only applies to this program, but the U.S. Supreme Court has a similar case on its docket, so a broader precedent may soon be set.

The Wayne County case highlights a key problem with Michigan’s civil asset forfeiture laws. State lawmakers have passed a series of reforms over the past decade. A Mackinac Center report notes that these policy changes have likely led to fewer forfeitures and a higher likelihood that people are at least charged with a crime before losing their assets.

But current laws still have loopholes. Notably, while the state needs to secure a criminal conviction or have people sign away the rights to their property prior to forfeiture, this only applies to drug-related crimes. This should apply to all forfeitures. And allowing people to sign away their assets, especially with no clear timeframe, means they can be pressured to do so despite never being charged with a crime.

As this recent court case shows, police can seize the property but not actually pursue the forfeiture for months. The court notes, "The generally high burden of proof imposed on the government under these statutes only applies at the forfeiture hearing itself. The statutes therefore do not protect plaintiffs from the deprivation of their properties while they await that hearing."

It is typically a year before a person is actually in front of a neutral court to contest the forfeiture. Almost none of the cases make it that far. Few people want to go a year without a car or pay an attorney for just a chance at getting a vehicle back.

Lawmakers should take a cue from the court and clean up forfeiture laws statewide.