Civil asset forfeiture: Justice, or revenue enhancement?

March 9, 2015




State law is turning police into predators. Those we expect to "serve and protect" are instead stealing from and abusing innocent Michigan citizens. This is from a February 23 Detroit Free Press story by reporter L. L. Brasier:

Thomas Williams was alone that November morning in 2013 when police raided his rural St. Joseph County home, wearing black masks, camouflage and holding guns at their sides. They broke down his front door with a battering ram.


"We think you're dealing marijuana," they told Williams, a 72-year-old, retired carpenter and cancer patient who is disabled and carries a medical marijuana card.


When he protested, they handcuffed him and left him on the living room floor as they ransacked his home, emptying drawers, rummaging through closets and surveying his grow room, where he was nourishing his 12 personal marijuana plants as allowed by law. Some had recently begun to die, so he had cloned them and had new seedlings, although they were not yet planted. That, police insisted, put him over the limit.


They did not charge Williams with a crime, though.


Instead, they took his Dodge Journey, $11,000 in cash from his home, his television, his cell phone, his shotgun and are attempting to take his Colon Township home. And they plan to keep the proceeds, auctioning off the property and putting the cash in police coffers.


More than a year later, he is still fighting to get his belongings back and to hang on to his house.

Surprisingly, the state law that permits these seizures is in the public health code. It stems from the regulation of controlled substances - drugs. It appears to have started innocently enough with the licensing for the manufacture, distribution, prescription, and dispense of drugs. Section 333.7311 says that should a license violation occur, "all controlled substances owned or possessed by the licensee . . . may be placed under seal or seized."


Of course, the manufacture, distribution, prescription, and dispense of a controlled substance without a license was also a violation. Soon it was not only the "controlled substance" that could be seized, but the property in which the controlled substance was contained; aircraft, vehicles, or vessels used to convey the controlled substance; and anything of value used or intended to be used in exchange for the controlled substance, including money, negotiable instruments, and securities. (Section 333.7521


The disposition of seized property is addressed in Section 333.7524. It says the state or the local unit of government that seizes the property may sell it and use the proceeds, along with any money seized, for law enforcement purposes. It specifies that those funds shall supplement - not replace - funds otherwise budgeted for law enforcement purposes. So public health law gives police not only a license to steal, but an incentive: they could use the loot to buy more stuff for their departments. 


In a March 6 opinion piece in the Detroit News, Kevin Cotter (right), the new speaker of Michigan's House of Representatives, says asset forfeiture laws must be reformed to increase transparency, limit the profit incentives for police and protect citizens' rights. He points to the new House Republican Action Plan, which says this about asset forfeiture (item 4 on page 8):

Under current law, there is little transparency or accountability on the taking of private property by law enforcement. The public should know how much property the state has taken and how it is disposed of, especially when there is not an accompanying criminal conviction. If the state isnít willing to go through the trouble of prosecuting a person for a crime, then one must question if the state should be able to take that person's property.

The Republicans had a chance to do something about it last year. In January of 2014, Democratic state Representative Jeff Irwin (left) of Ann Arbor introduced a bill (HB 5212) allowing forfeiture only with a conviction. It never got out of committee. He plans to reintroduce it this year.


Banning asset forfeiture without a conviction is not nearly enough. What is it about drug-related crimes that makes the state think it can grab people's property? They don't do that for other crimes. Did it evolve from that long-ago, fairly sensible provision for seizing controlled substances from unlicensed individuals and license violators?


Police should be allowed to seize or destroy "property that may not be legally possessed by any person or that is dangerous to the health or safety of the public" as provided in Irwin's bill. But they should keep their hands off all other property, even if the owner is convicted.


And if anything of value is confiscated, police departments should not be allowed to keep it, or keep the proceeds from its sale. It should all go into the state general fund so as not to provide the police or their local governmental unit a financial incentive to "seize." Law enforcement should not be a money-making enterprise.


Michigan U.S. representative Tim Walberg (left) is proposing something like that at the federal level. He has

teamed up with U.S. Sen. Rand Paul, a Republican from Kentucky, to draft new legislation to revamp federal forfeiture laws and provide greater protections against abusive seizures. The law, which is receiving bipartisan support, would prohibit law enforcement from receiving proceeds from forfeitures and would, instead, require that the money go into the general fund. (Detroit Free Press, 2/23/2015)

More state leaders need to speak up on this issue, not only because of the appalling mistreatment of Michigan citizens, but for the corrupting influence it has on police. Unfortunately, state police director Kriste Etue (below, right) seems to take pride in the program. This is what she says in the cover letter to the 2013 Asset Forfeiture Report:

I am pleased to present to the Michigan Legislature the 21st comprehensive report on asset forfeiture. Michigan's asset forfeiture program saves taxpayer money and deprives drug criminals of cash and property obtained through illegal activity. Michigan's law enforcement community has done an outstanding job of stripping drug dealers of illicit gain and utilizing these proceeds to expand and enhance drug enforcement efforts to protect our citizens.


During 2012, over $26.5 million in cash and assets amassed by drug traffickers was forfeited. Extensive multi-agency teamwork is evident in this report. Considerable assets were obtained as a result of joint enforcement involving many agencies at the federal, state and local levels.

(Note: In January of this year, U.S. Attorney General Eric Holder banned state and local police from using federal laws to justify seizing property without evidence of a crime.)

Forfeiture funds were used to enhance law enforcement by providing resources for personnel, needed equipment, K-9 expenses, prevention programs, and matching funds to obtain federal grants. Michigan's recently amended Drug Forfeiture Statute allowed some agencies to contribute monies to non-profit organizations that assist in obtaining information for solving crimes.

Here's another example of how those funds to "enhance law enforcement" are obtained. It is from L. L. Brasier's Detroit Free Press article:

Wladyslaw Kowalski, 60, with a PhD in engineering from Penn State, specializing in ultraviolet light technology, obtained a medical marijuana card for a heart condition, and immediately became fascinated by the process of growing superior strains of marijuana, devising intricate light systems in his 170-year-old farmhouse in rural Bloomingdale in southwest Michigan.


He became licensed to provide marijuana to other patients and began supplying for free two terminal cancer patients who lived locally.


He then began experimenting growing the plants outside in a large, fenced garden, using complicated light reflectors to extend the growing season by several weeks. "I basically created the same environmental conditions as southern California," he said. "The plants just grew and grew."


A police helicopter spotted the garden from above, and police raided the farmhouse in September. They cited him for failing to keep a cover on the garden, for it being visible from the road, and for having too much marijuana on the premises.


Kowalski said he was growing extra plants to ensure that he and his three clients would have adequate supplies throughout the year. "I'm dealing with a shorter growing season than if I was growing indoors. This is a math issue."


Police froze his bank accounts and destroyed his plants but did not arrest him at the time.


Three months later, he shared his plight with the Mackinac Center, which posted an article online about it. Hours later, Kowalski was arrested and charged with two felony counts of drug manufacturing and a misdemeanor charge of giving marijuana away for free. And police have filed paperwork to take away the 20-acre farm, which has been in his family for more than 50 years. A trial date has not been set. If convicted, he faces up to seven years in prison.


"I was interested in the technology, that's all," he said. "I never made money selling marijuana and never planned to. I was going to make money introducing this new technology. And now I may lose everything."

The state legislature must put an end to the asset forfeiture program, not only out of respect for the dignity and property of Michigan citizens, but to restore the integrity of the police. Who better to lead the effort than our own Senator Rick Jones, former Eaton County Sheriff?


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