The Michigan State Police detective who helped train the state police in how to conduct civil asset forfeiture says the police are misusing it.
Former Michigan State Police Detective Sergeant Ted Nelson, who developed a curriculum on civil asset forfeiture for the department and taught it for more than a decade, made those comments to the state House Judiciary Committee on Feb. 6.
The committee hearing was the first of many which are scheduled to be heard on House Bill 4158 over the next couple weeks. After that, the committee may vote on whether to send the bill to the full state House of Representatives.
The bill would require police officers and other law enforcement officials to convict someone in a criminal court before they could take ownership of cash and other assets they seize, for property valued at $50,000 or less.
“Law enforcement is an extremely important vocation in our society and it is as important today as yesterday,” Nelson told the committee. “I believe that the policy and procedures of civil asset forfeiture erodes the public trust in law enforcement.”
Nelson told Michigan Capitol Confidential that during his 26 years with the department, he saw law enforcement officials receive by forfeit items, such as furniture, that they believed could be used in department offices or sold for a profit. Nelson, who supports HB 4158, said this type of behavior wasn’t the reason civil asset forfeiture was introduced.
Nelson said he first received training on civil asset forfeiture in the late 1980s when the practice was considered part of the war on drugs. At the time, civil forfeiture was used mainly for major drug crimes, in which narcotics enforcement would obtain the proceeds of criminal activity.
Nelson developed a curriculum to teach the state police’s drug teams. He was the expert state police troopers called when they seized money and they weren’t sure it could be tied to a drug crime.
“We’re the foot soldiers of the Constitution and sometimes we forget that,” Nelson said.
Nelson said he doesn’t believe enacting HB 4158 would change how police officers do their job, but he believes it would change how prosecutors do their job.
Shelby Township Republican Rep. Peter Lucido is the primary sponsor of the legislation. At the hearing, he said law enforcement officials can use mechanisms other than civil asset forfeiture to ensure that those believed to have participated in criminal activity cannot make a profit from ill-gotten gains or get rid of illicit substances.
“We lost the war on drugs, and civil asset forfeiture has penalized the poor,” Lucido said to the committee. “Officers were sworn to protect, and not take.”
Attorney Michael Komorn, who is president of the Michigan Medical Marijuana Association, attorney John Shea and national civil asset forfeiture expert Lee McGrath also testified in support of the bill.
Not everyone who appeared before the committee supported the bill, however.
Waterford Police Chief Scott Underwood said that while he wouldn’t directly offer an opinion on the legislation being discussed, he believes civil asset forfeiture is a useful tool for law enforcement.
“I would say that for the most part, that civil asset forfeiture comes from good police work,” Underwood said to the committee. “The numbers with asset forfeiture don’t lead, they follow.”
Lucido said in an interview that while he doesn’t want to imply police officers are corrupt, he believes that civil asset forfeiture is too easily abused.
“If even one cop abuses it, it’s too much,” Lucido said to Michigan Capitol Confidential. “I had cops who took kid’s piggy banks and dart boards and I’m done with it.”
Currently, law enforcement officials do not need to convict, prosecute, or even charge a person of a crime before they can get ownership of seized property through civil asset forfeiture procedures.
In 2016, one out of every 10 Michigan residents whose property was taken by law enforcement using civil asset forfeiture was never charged with a crime. According to a Michigan State Police report, more than 700 people were either not charged with a crime, or charged with a crime but not convicted. Since 2000, the state has taken possession of forfeited property worth $20-$25 million annually.
The legislation may be part of a larger package aimed at reforming the state’s civil asset forfeiture law. If the measure passes and is signed into law by Gov. Rick Snyder, Michigan will join the 14 states (along with the District of Columbia) that already require a conviction for law enforcement to take possession of seized property.
State lawmakers eye forfeiture reform
Local officials support 'common sense' legislation
TRAVERSE CITY — A bill aimed at protecting property rights of the accused is amassing support from local officials as it gains steam among state lawmakers.
House Bill 4158 — introduced this month by Republican state Rep. Peter Lucido — would safeguard residents from court-ordered property seizures unless they’ve been convicted of a crime. Lucido contended its passage would affect hundreds annually.
“We have people that get their property taken by police who are not detached, neutral magistrates or judges,” Lucido said. “That’s violation of property rights 101. … It’s called due process under the Fourth amendment and the 14th amendment.”
Lucido noted law enforcement — specifically through task forces like the Traverse Narcotics Team — have been overly empowered by laws that allows police to confiscate property from those suspected to be involved with drugs.
Michigan’s law enforcement agencies collected more than $244 million in gross forfeiture proceeds between 2001 and 2013, averaging about $19 million per year, according to a report from the Institute for Justice. And none required a conviction.
Police agencies, in turn, are authorized by law to offload those assets and keep a portion of the proceeds to buy equipment and “enhance all law enforcement activities.” Records show TNT seized at least $400,000 during the past six years.
The bill would prohibit forfeitures unless a suspect is found guilty of a crime in court, amending a section of an existing state law. It would take effect next year if passed into law, and would only apply to seizures under $50,000.
“$50,000 is a little bit much to have in your pocket,” Lucido explained.
Local and state officials — including those who soon could be stripped of their authority to confiscate property — have praised the spirit of the bill. Others, while recognizing need for further reform, were hesitant to endorse the changes.
“It would be easier for us and more fair to those who are having their property forfeited to have a criminal conviction,” said Grand Traverse County Undersheriff Nate Alger. “Our system is based on being innocent until proven guilty.”
Attorney General Bill Schuette this week said conviction before seizure is a “good principle” to maintain. County Prosecutor Bob Cooney noted most local forfeiture cases include a criminal conviction but said current laws force them to continue.
“I wish the state would better fund narcotics teams and not incentivize them in anyway to go after forfeiture dollars,” Cooney said. “At the same time, those laws were set up to take away profits from those selling illegal drugs. That’s the idea.”
Lucido’s bill eliminates the requirement people negotiate for the return of their possessions but some officials — like Kalkaska County Prosecutor Mike Perreault — are concerned it could unfairly entwine property seizures with plea bargains.
His office tries to avoid forfeiture altogether. The bill could connect those cases with criminal matters and force him into the business regardless, he suggested.
“I’m a little concerned that by tying them to a criminal conviction, it’s going to bring me people who try to barter their way out of things,” Perreault said. “I could also see the argument then that we’re only prosecuting people to take their stuff.”
Advocacy groups for years have lobbied against statutes that allow civil forfeiture cases to proceed. Some contended they disproportionally impact lower income residents because of often costly legal battles attached to reclaiming property.
Others have said seizures lead to “policing for profit” because police, in most cases, can keep the proceeds for their own department. Michigan State Police officials have contended the concept helps save taxpayer dollars and deprives criminals of cash.
State Rep. Larry Inman said he supports Lucido’s bill and noted police shouldn’t be able to keep property without a conviction. Benzie County Sheriff Ted Schendel said “common sense” dictates police first need to prove someone guilty of a crime.
“I know forfeiture is a huge asset, especially for drug enforcement teams. There’s never enough money to fund those things,” Schendel said. “But I like to err on the side of the people and the Constitution.”
A legislative analysis contended the bill would have an indeterminate fiscal impact for law enforcement. It noted its passage likely would result in declined forfeiture-related revenues and impact federal revenue sharing for Michigan State Police.
The bill — introduced last week in the House — was recently referred to the Committee on Judiciary. Lucido said lawmakers soon will hear testimony as it pushes forward in the legislature. Visit record-eagle.com for continued coverage.