Civil asset forfeiture: Justice, or revenue
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
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
"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
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
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
The disposition of seized property is
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.
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.
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
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
(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
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
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
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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