For cash-strapped police in Michigan, asset forfeiture bills could be a blow

Police across Michigan took in more than $13 million worth of assets from people suspected of crimes in 2017. New legislation may cut out a sizable portion of that funding. (Photo courtesy of the Michigan State Police)

Update: Michigan civil asset forfeiture bills headed to Gov. Gretchen Whitmer

As the opioid epidemic ramps up, police across Michigan are staring down the probability of losing some of the financial resources they use to fight drug criminals.

That’s the viewpoint, at least, of many in law enforcement who oppose major legislation that they say could cost them a portion of a $13 million revenue stream and which both Republicans and Democrats are eager to sign off on: civil asset forfeiture reform.

Nearly identical state legislative packages — one sponsored by Sen. Peter Lucido, R-Shelby Township, in the Senate, and a second in the House by Rep. Jason Wentworth, R-Clare, and Rep. David LaGrand, D-Grand Rapids — would require a criminal conviction before police can keep someone’s assets (such as cars, cash, or homes) seized in connection with a suspected crime.

Opinion: Softening Michigan civil asset forfeiture laws helps drug dealers

Even when people are not convicted or charged following an arrest, many still must go to court to get their property back, sometimes accruing hefty legal fees. And because police departments often keep what they take and add it to their budgets, proponents of the legislation say the current law incentivizes law enforcement to abuse the system.

“This is going to provide a lot of justice for a lot of our citizens, particularly some of our poorest and most vulnerable citizens,” LaGrand said of his bill on the House floor in late February.

LaGrand, Wentworth and Lucido are still discussing what they characterize as small differences between the bills to determine which will receive a final vote and likely go to the Governor. The House bills are awaiting a hearing in Senate committee and the Senate bill is awaiting a vote on the House floor.

Groups as diverse as the free-market Mackinac Center for Public Policy and the left-leaning ACLU support the proposed legislation. Banking groups, a cannabis advocacy group, racial equity groups and more have joined the chorus. For Democrats, it’s a matter of social justice. For Republicans, it’s about personal liberty and limiting the reach of government.

Standing squarely on the other side are cops, who say the pending laws would bind their hands and unleash drug dealers upon Michigan’s cities, armed with the cash they’d now be allowed to keep.

Robert Stevenson, executive director of the Michigan Association of Chiefs of Police, since restricting police asset forfeitures undermines law enforcement as the state is battling an opioid epidemic.

“It is going to have a negative effect upon narcotics enforcement at a time when we’re in an epidemic fight with the opioid problem,” said Robert Stevenson, executive director of the Michigan Association of Chiefs of Police, who said the bills would leave many police departments without the resources to fund narcotics teams. “Now we’re going to eliminate people that are fighting that fight.”

Undetermined impact

Exactly how much cash police departments would lose is unclear. The Michigan State Police said that law enforcement agencies across the state took in more than $13.1 million in cash and property in 2017, the most recent year for which there is data.

Police collected those funds from nearly 7,000 instances of forfeiture, the vast majority of which were connected to alleged drug crimes. In nearly 1,000 of the forfeiture cases, the person was not charged or convicted of the crime associated with the forfeiture.

That money can be used to “enhance enforcement,” such as buying new vehicles, paying officers overtime and caring for canine units. Most often, asset forfeiture funds are used for technological equipment such as records management systems and mobile data terminals or traditional equipment like bulletproof vests.

But not all of that money would be lost under the current bills: The new legislation requires conviction, but provides exemptions for amounts over $50,000 and for instances in which no one claims the property or the defendant enters a plea agreement.

These exemptions were enough to convince the Michigan State Police and Michigan Sheriff’s Association to remain neutral, rather than oppose, the bills. They’d prefer things stay as they are, but if the bills must pass — and they’re barrelling toward the governor’s desk — this version is better than past versions.

“We saw the handwriting on the wall and we moved our position to neutral,” said Blaine Koops, CEO and executive director of the Michigan Sheriff’s Association. “Do we necessarily like it? Absolutely not. But we also understand the political reality.”

The Michigan State Police report on seized property does not identify which departments bring in the most through asset forfeiture or how those departments used that money. However, data obtained through public records requests to Michigan State Police by the Mackinac Center and provided to Bridge indicate large police departments in metro Detroit could face the biggest revenue losses if police forfeiture actions are reined in.

Among those near the top of the list is the Oakland County Sheriff’s Office, which had 409 property seizures in 2017 based on the MSP data obtained by the Mackinac Center. Oakland County Undersheriff Michael McCabe estimated the total amount his department collected that year was around $1 million.

But McCabe, like leaders of other police organizations that spoke with Bridge, said his narcotics team wouldn’t face budget cuts as a direct result of the legislation because the department doesn’t rely on asset forfeiture funds to pay for essential law enforcement work.

“I don’t see any of the local police chiefs taking their people out because they’re not making a profit on it, anyway,” McCabe said. “We are not in the business to make money, that's not what we’re about. We’re in the business to take drugs and drug dealers off the street.”

Oakland County Undersheriff Michael McCabe said he doesn’t anticipate changes to the state’s asset forfeiture law would harm his agency’s budget since it does not depend on revenues from seized property for staffing.

The Oakland County Narcotics Enforcement Team doesn’t fund its work through forfeiture, McCabe said. It uses that money for equipment such as sniper rifles and defibrillators.

That means it’s unlikely any positions would be eliminated should the bills pass, McCabe said. Rather, the drug team would go to the local Board of Commissioners — which already approves each forfeiture, he said — to ask for funding for equipment the team used to buy with forfeiture funds.

McCabe said the nearly $1 million collected through forfeiture is split among 16 agencies that contribute to the area’s narcotics enforcement team (a common practice throughout the state), which amounts to around $62,000 per agency. On narcotics enforcement alone, Oakland county law enforcement agencies spend around $5.2 million every year, he said; far more than they recoup through forfeiture.

Asset forfeiture funds do help pay for investigations by Michigan State Police’s multijurisdictional task forces that cover multiple cities and counties across the state, said spokesman First Lieutenant Tim Fitzgerald. That means the forfeiture bills could harm that police work if they becomes law.

“Will operations be impacted by the loss of forfeiture funds? Absolutely,” Fitzgerald said. “If that happens we would be looking to the legislature to help us fill those holes.”

Top five alleged crimes resulting in forfeiture in Michigan

Crime Instances of forfeiture (2017)

Possession of less than 25 grams of cocaine, heroin or another narcotic

1,306

Delivery/manufacture of less than 50 grams of narcotic or cocaine

1,054

Property used for prostitution, gambling, “lewdness,” or “assignation”

878

Delivery/manufacture of marijuana

845

Possession of marijuana

519

Source: Michigan State Police

Unintended causes and consequences

The Michigan Association of Chiefs of Police, the only law enforcement agency publicly opposing the bills, says the frustration is not over the money lost but rather the loss of an important tool to lock up drug dealers.

Police can’t charge people with drug crimes unless there are drugs present, Stevenson of the Michigan Association of Chiefs of Police said. He said even if they came across people with a room full of cash, scales and ledgers tracking sales, they couldn’t charge them without also finding drugs.

Dealers intentionally keep product elsewhere to exploit this loophole and would adjust how much they carry at once to be under the $50,000 threshold, he said, and that’s why any legislation requiring a criminal conviction should create a lower threshold for exemption.

Lucido, sponsor of the Senate bill who spent decades as a criminal defense attorney, said “there’s no logic in what the police are saying.”

“I’m concerned about how much have they gained over the years that they shouldn’t have had the right to take and forfeit without ever changing somebody rather than how much they’ll lose,” Lucido said, adding that he’s also spoken with police officers who feel the current legislation will leave them all the necessary tools to fight drug crime.

“Here’s the bottom line, a loss of liberty or a loss of property is a constitutional violation.”

Some in law enforcement and in the legislature say police would have to rely less on asset forfeiture funds if local governments were funded properly. The Michigan Municipal League estimates municipalities have suffered more than $8 billion in revenue sharing cuts from the state since 2008, making it far more difficult to afford a robust police force. In some rural areas, property values are falling and cities are deeply in debt.

“We put a lot of communities in some precarious situations because we have not been funding them,” said Democratic Rep. Christine Greig, the House Minority Leader. “(But) that shouldn’t come into the talk about civil asset forfeiture. What’s the right policy here?”

It’s important to protect people’s rights, House bill sponsor Wentworth, the Republican from Clare, told reporters when his bill passed the chamber in late February.

“This bill was about protecting due process rights for our citizens, not about budgeting or individual sheriffs’ departments,” Wentworth said. “It's about the state as a whole protecting the citizens of our state.”

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Comments

Chris S
Tue, 03/12/2019 - 8:55am

Law enforcement's concerns about these bills ring hollow. Might they lose a revenue stream? Absolutely. After all, theft can pay quite well, regardless of whether the thief has a badge or not. That doesn't make it right, ethical, or even constitutional (see recent SCOTUS ruling.)

I absolutely support using proceeds of crime to support law enforcement, once a crime has been proven. Shoot, I even support seizing and holding assets in escrow assets during the course of a criminal investigation (within reason). However, there should never be a case where law enforcement is allowed to profit from seizures until a criminal conviction has been obtained. We literally fought a war over this.

Paul Jordan
Tue, 03/12/2019 - 8:56am

Let me see if I understand this. The proposed legislation wouldn't allow police to keep seized assets from people who are not convicted of a crime. Police departments are claiming that they will have to return up to $13 million that they seize from people who aren't proven in court to be criminals.
If you take things from people without court action, isn't that called "stealing"? Doesn't this mean that police have been stealing $13 million a year from people who are (legally) innocent?
In what Alice in Wonderland world is this just?
This legislation makes a lot of sense.

David Zeman
Tue, 03/12/2019 - 11:36am

In fairness, the police aren't claiming a loss of 13M if this bill passes. What the report says is that police agencies in Michigan collected about 13M in forfeited property in the most recent year in which statistics are available, of which about 15 percent involved cases where there was no conviction. 

Jerry
Tue, 03/12/2019 - 9:08am

Drug cases aren't the only situations where police seize assets. Why stop confiscating private property with just drug cases? Anytime the budget gets tight just seize someones assets and make it time consuming, expensive and nearly impossible to get back. Check this site to look up your local government's payroll.

Arjay
Tue, 03/12/2019 - 9:21am

When police take personal assets from someone, and that person is not convicted, then it is wrong, wrong, wrong. The power hungry police agencies only want new toys to make them feel more powerful. If a person is convicted, and all appeals are lost, then the police agencies can get their hands on the felons assets.

Le Roy G. Barnett
Tue, 03/12/2019 - 9:34am

The 14th Amendment to the U.S. Constitution says (in part) that no State shall "deprive any person of life, liberty or PROPERTY (emphasis added) without due process of law...." When citizens of this nation lose their property without even being charged with--or found guilty of--a crime, then we have started to use Nazi Germany and the Soviet Union as role models.

John Q. Public
Tue, 03/12/2019 - 5:00pm

Regardless of how odious the forfeiture law was (and is), the "due process" clause was complied with in the lawmaking process. The continuation of civil asset forfeiture has been reduced almost entirely to a political question. Thankfully, tyranny took a bit of a beating with the recent amendments, so props to our legislature for that.

Le Roy G. Barnett
Wed, 03/13/2019 - 9:01pm

I was deficient in failing to note that asset forfeiture also violates the Fifth Amendment to the U.S. Constitution, which declares in part that no person shall "be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." It is ironic that the people who enforce the laws of this nation willingly violate TWO Amendments to our country's seminal document. The quest for money apparently trumps everything else.

pierredeboe
Sun, 04/28/2019 - 9:59am

Keep in mind, law enforcement and prosecutors offices are on the same team. They are compensated from the same tax base. Connecting the dots leads one to believe they like it just the way it was. Asset confiscation of those not guilty of crimes should be subject to the legal process and retribution to those wronged with compensation plus punitive damages. Just as police officers have been exonerated of shooting unarmed, fleeing suspects, I'm inclined to believe loss of the "good ole boy" network will continue to allow shoot first, get the facts later and a sanitized account will be made public to exonerate law enforcement. I am encouraged by the change of forfeiture law though.

Doug L
Sat, 04/27/2019 - 4:03pm

John Q, I disagree. Just because the legislature manages to tiptoe around the constitution and the courts are too gutless to declare that this is a clear violation of the constitution, does not make it constitutional. We previously declared that slavery was constitutional. That has corrected. It's time to correct this travesty of justice.

Andrew
Tue, 03/12/2019 - 9:40am

If the republicans hadn't cut revenue sharing to cities and towns so much they would have plenty of money to fund their police departments

Agnosticrat 2.0
Tue, 03/12/2019 - 9:53am

Tell the police they can steal peoples stuff to pay their bills when I can!

John Chastain
Tue, 03/12/2019 - 12:27pm

The war on drugs which has driven the growth of the prison industry as well as the militarization of police forces around the country is one of the most poorly thought out and disastrous policies ever enacted. Driven by hype and hysteria and the disingenuous politicians who profited from it, the war on drugs has become a war on communities. We've taken a public health crisis and turned it into criminality because there is profit in it. Yet despite all the people in prison and the billions devoted since Reagan we have not seen a decrease in use or availability. Now of course we didn't need street corner pushers and "illegal" drugs to create the opioid addiction crisis. Instead of narco states (the ones all those caravans are fleeing from) in central America we have big pharma & pushers with MD after their names. How much of these police resources has to go to dealing with the consequences of that crisis, how many will end in jail or dead. Is there a forfeiture action for that cost? This is insanity and forfeiture is only one part of a failing strategy. Time to rethink the whole "war" on stuff trope and consider a mix of legalization, medical treatment and yes, law enforcement by police dedicated to communities and not the swat minded, militarized agencies that so many have become. That is if we really want to address substance abuse (drugs legal and illegal, alcohol, tobacco et:al) instead of engaging in moral posturing and profiteering.

Doug L
Tue, 03/12/2019 - 12:43pm

Why stop with letting the police steal your property without any conviction or due process. We should move ahead and allow the police to shoot anyone that they suspect is in violation of any law, no matter how minor the offence. Jaywalking? Shoot him! Then seize all his property! Damn his family, they knew, or should have known that he was a jaywalker! Then take the now indigent family off to a corrections facility where they can be executed, removing their burden on law abiding citizens.
Or perhaps we should just follow the constitution.

John Q. Public
Tue, 03/12/2019 - 5:03pm

The second-most common expenditure, accounting for one dollar of every six, is "other"?

I can't believe the auditor general doesn't have a problem with that.

James C. Walker
Thu, 03/14/2019 - 12:13am

Civil forfeiture without a conviction for a related crime is theft. PERIOD!
All the officials involved should be prosecuted for larceny with resulting jail sentences if convicted. This must become the law in every state to end the abusive thefts from those not convicted of crimes.
James C. Walker, National Motorists Association, Ann Arbor

Dennis Thering
Thu, 03/14/2019 - 9:55am

I've always hated this law because it doesn't require a conviction. It is stealing, plain and simple. Why should narcotics enforcement teams be funded by illegally attained property? If we did that, we'd be in jail.

Doug L
Sat, 04/27/2019 - 3:59pm

Seizing property without a conviction is clearly unconstitutional, and clearly immoral. I generally support law enforcement, but I cannot support the government stealing from the citizens.