Legislature seeks to limit police confiscation powers

By CAITLIN McARTHUR
Capital News Service
LANSING — Michigan lawmakers want to make it harder for law enforcement agencies to take people’s stuff when they’re not charged with a crime.
Legislators have introduced bills to reform the state’s “civil forfeiture laws,” which they and civil liberties advocates say encourage abuse by police agencies and infringe on citizen rights.
Civil forfeiture law in Michigan allows police and prosecutors to confiscate a person’s car, property or money if they suspect it has been used in criminal activity — even if the owner is not charged with a crime. This is different from criminal forfeiture law, which requires the owner to be convicted in court before the asset can be seized.

The money and proceeds from seized assets — $24 million in 2013 — go into agency budgets. The process creates incentives for cash-strapped departments to aggressively confiscate property and undermines the presumption of innocence, said House Speaker Kevin Cotter, a Mt. Pleasant Republican.
The reform bills, introduced by Rep. Klint Kesto, a Republican from Commerce Township, would require all state, county and local police to report their forfeiture seizures. The bills would also prevent police from seizing property for less than an ounce of marijuana use and raise the standard of proof needed to keep seized property.
“The criminal justice system in this country is founded on innocent until proven guilty, and I think we generally do a pretty good job of living up to that,” Cotter said. “However, civil forfeiture is an area where we do not.”
Shelli Weisberg, legislative director for the American Civil Liberties Union of Michigan, agreed that the current system is ripe for abuse.
“The current forfeiture laws, as they work now, are absolute incentives to take property,” she said.
Weisberg said allowing agencies to use funds from civil asset forfeiture to offset budgetary pressures creates a conflict of interest which can make police more heavy-handed in their application of the law.
Awarding the proceeds of seized property to the agency that took them is a conflict of interest, Cotter said, that needs to be discussed, although this is not addressed in the proposed bills.
“This should not be seen as an opportunity to benefit law enforcement financially,” Cotter said. “This should be seen as a tool to fight crime.”
Cotter said despite its exclusion from the current draft of the legislation, this would play a part in the upcoming debate. Keeping the civil asset forfeiture law as it is simply due to budgetary pressures, he said, was not an option.
A 2010 report, commissioned by the nonprofit libertarian law firm Institute for Justice, found Michigan has a significantly lower standard of proof for seizing property than for convicting someone of criminal activity.
To prevent property being returned to an owner, prosecutors must prove in court that the seized asset was more than likely involved in a crime. This standard, Cotter said, needs to be raised to require the prosecutor to show a strong likelihood of guilt before the property can be taken.
Many civil asset cases don’t even make it to court, with property owners unwilling or unable to pay the costs or expend the time to get it back. If the person from whom the item was confiscated does not file a complaint with the court, the item is auctioned off, and the proceeds sent to the agency that seized it.
Col. Kriste Kibbey Etue, director of the Michigan State Police (MSP), said some people don’t file claims on seized property because they don’t want to be connected with obvious criminal activity. The department, which compiles reports of forfeiture activity, is keeping a close eye on the reform legislation.
“Let’s be reasonable here,” Etue said. “If it’s being abused, then let’s address those kinds of behaviors — but it’s stopping the trafficking of illegal drugs in this state, across state lines.”
Under this law, Etue said, officers are able to intercept and confiscate drugs and money before they hit Michigan’s streets. Etue said she hoped the legislature’s attempts at reform would not compromise law enforcement’s ability to combat drug trafficking.
Both Cotter and Weisberg dismissed Etue’s defense of the current law. Weisberg acknowledged police need tools to shut down criminal activity, but said they have to respect people’s rights at the same time.
“All we’re asking for is oversight, transparency and parameters around how this law is used,” Weisberg said.
While agencies submit an annual asset forfeiture report to MSP, Cotter said agencies are not being required to report to a satisfactory standard. Last year, 8 percent of agencies did not report their seizures at all.
Additionally, Cotter said, those reports should be more accessible to the public, rather than the information simply being sent to an office in Lansing.
The State Police have strict rules dictating that its civil asset forfeiture proceeds be channeled into training and equipment budgets. This, however, is not true of all agencies.
More than $24 million in assets was seized in 2013, according to the State Police 2014 asset forfeiture report. The agencies reporting the highest asset seizure proceeds were Wayne, Macomb, Oakland, Ingham and Kent counties. Statistics were from both sheriff’s offices and police agencies within the counties.
The report says the proceeds help pay for such expenses as informant fees, undercover purchases, training costs, supplies, and building and utility costs for narcotic unit operations or department telephone bills.
Cotter said he is open to discuss funding with police agencies but that Michigan should not continue to condone a bad system just because departments need money.
“I don’t think we can be defending the current system of civil asset forfeiture for the revenues that can be generated from it,” Cotter said. “The laws should not be kept simply due to budgetary concerns. Our primary concern should be an equitable justice system.”