from the who's-the-real-criminal-here dept
Wayne County, Michigan cops and prosecutors love seizing property. According to law enforcement, seizing cash and cars from people (while often not charging them with crimes) is the best way to break up criminal organizations and disrupt the illegal drug market.
What’s left unexplained is how Wayne County’s forfeiture program does anything more than make poor people poorer.
Jarrett Skorup of the Mackinac Center for Public Policy, who co-authored a recent report on civil forfeiture, said the data shows nearly all of those Wayne County seizures involved vehicles valued at less than $1,000. He said it’s likely that these forfeitures disproportionately affected low-income individuals, who are less able to afford an attorney or navigate the legal system to reclaim their property.
When I think “powerful/dangerous criminal,” I usually don’t associate them with vehicles featured in Craigslist ads suspiciously short on photos or vehicle condition descriptions. Seizing shitboxes from folks doesn’t do anything but add incrementally to the pool of purloined property prosecutors and cops are allowed to profit directly from.
That practice got Wayne County sued in 2020. Two plaintiffs, whose vehicles were taken due to alleged criminal acts of others (although criminal charges were never filed in either case), kicked off an expected class action challenging the county’s forfeiture program — both the way seizures were performed, as well as county’s unwillingness to engage with car owners seeking the return on their property.
That cycle of abuse also prompted asset forfeiture reforms in the state. (These have since been rolled back.) None other than Wayne County prosecutor Kym Worthy was the first to protest the proposal of making forfeiture dependent on criminal convictions, offering up this inadvertently hilarious criticism of the proposed reforms:
”Since a conviction is now required, it will make it extremely difficult to prosecute high level drug dealers,” Wayne County Prosecutor Kym Worthy said via email.
Did you get that? The prosecutor says prosecuting drug crimes will make it more difficult to PROSECUTE DRUG CRIMES.
Objection overruled! The Institute for Justice reports the Sixth Circuit Appeals Court has determined Wayne County’s car seizure program to be unconstitutional.
Today, the 6th U.S. Circuit Court of Appeals ruled that Wayne County violated the rights of Detroiters by not offering prompt court hearings within two weeks of their vehicles being seized. Wayne County regularly seizes and retains vehicles for months or longer without providing an opportunity for a hearing to challenge the seizure and get their vehicles back. The Institute for Justice (IJ) filed its class action lawsuit challenging this program in February 2020 on behalf of Detroiters whose vehicles were seized without receiving a hearing.
There’s a lot of good stuff in the opinion [PDF] (as well as the concurring opinion) declaring this Wayne County abomination to be an unconstitutional abuse of government power. Let’s get to it.
Here’s the conclusion of the court, which is backed by lots of criticism of Wayne County’s abusive forfeiture activities:
Plaintiffs claim they were not provided an opportunity to be heard about the detention of their vehicles and that this failure violates the Due Process Clause of the Fourteenth Amendment. The district court held that plaintiffs are entitled to the requested hearing. We agree and hold that Wayne County violated that Constitution when it seized plaintiffs’ personal vehicles—which were vital to their transportation and livelihoods— with no timely process to contest the seizure. We further hold that Wayne County was required to provide an interim hearing within two weeks to test the probable validity of the deprivation.
And here’s how Wayne County’s program operates. Brace yourself. It’s pretty ugly.
According to plaintiffs, Wayne County seizes vehicles simply because of the vehicle’s location in an area generally associated with crime. Regardless of the owner’s innocence, Wayne County impounds the vehicles and its contents until the owner pays a redemption fee. This fee is $900 for the first seizure, $1,800 for the second, and $2,700 for the third, not including other fees for towing and storage.
If the owner is unwilling or unable to pay the redemption fee, the only alternatives are either to abandon the vehicle or to wait for county prosecutors to decide whether to initiate civil forfeiture proceedings. Before a forfeiture action is brought, there are four or more pretrial conferences involving the property owner and prosecutors, without a judge present. During those conferences, prosecutors “attempt to persuade [the owner] to pay the redemption fee, towing costs, and storage fees, pointing out that storage fees accrue daily.” The owner must attend all conferences, for missing just one will result in automatic forfeiture and transfer of title to the county.
As these conferences occur once a month, it takes at least four months, on top of any previous delays (usually an additional four to six months), to complete the pre-hearing requirements and finally arrive before a neutral decisionmaker. This results in a potential timeline of at least eight months from the time the vehicle was initially seized to when the owner may potentially recover it without paying a fee.
Months of mandatory hearings followed an arbitrary delay of several more months, all of it designed to convince car owners’ to relinquish their claims to their property. And these seizures — despite law enforcement claims about breaking up drug cartels — can be effected under nuisance abatement and prostitution laws. Plus, there’s the state’s Omnibus Forfeiture Act, which allows seizures under pretty much any crime imaginable.
Bring on the due process violations!
Plaintiffs allege they were forced to wait at least four to six months to challenge Wayne County’s possession of their vehicles plus four more months for pretrial conferences—a long time to be without something that “occup[ies] a central place in the lives of most Americans.” Wilson lost one vehicle entirely in the labyrinth of procedures, and Wayne County possessed her next vehicle for one year. Reeves’s vehicle was seized and held starting July 2019 through February 2020. Wayne County seized Ingram’s vehicle twice. After the first seizure, she was told it would be “at least four months” before her case could come before a judge, which led her to pay $1,355 in fees to reclaim the vehicle. The city’s practices pushed Ingram into bankruptcy, leading her to surrender her vehicle to a creditor after the second seizure. In contrast with these lengthy time frames, courts have found procedural due process violations for depriving people of their vehicles sans hearing for three weeks to two months, Krimstock, 306 F.3d at 54, one week, Coleman, 40 F.3d at 262, and 97 to 142 days, Smith, 524 F.3d at 835–36. In light of these analogous examples, the deprivation to the plaintiffs is substantial.
This leads to the appeals court calling Wayne County out for its transparent desire to enrich itself at the expense of its residents:
Although Wayne County ostensibly seized the vehicles because of reasons related to health, safety, and/or drugs, the record suggests otherwise—that the county seized the vehicles in order to obtain proceeds from fees. If Wilson’s vehicle had a dangerous connection with drugs, it is unclear why the county promptly released the vehicle after a payment of $1,355. And if Ingram’s vehicle was a public nuisance, the county’s willingness to release the vehicle for $1,800 suggests it is more interested in the money than in remedying a public nuisance.
Wayne County can continue to seize cars. It will, however, no longer be able to simply wait out car owners while hitting them with compounding fees.
If a probable-cause hearing can be heard within 48 hours, and other circuits have found one to three weeks to be excessive in this sort of context, then, taking the factual setting of this case into account, we hold two weeks from the date of the vehicle’s seizure to be an appropriate time frame to provide the vehicle owner an opportunity to be heard to contest the holding of a vehicle vital to the owner’s transportation and livelihood.
The concurring opinion is even harsher in its assessment of this forfeiture program. Judge Thapar would rather see the government forced to hold a hearing within 48 hours. (The majority opinions notes that 48 hours — while certainly expedient — may put car owners in a more difficult situation than a two-week timeframe, noting that it may be impossible for claimants to find child care or request time off from work to attend a hearing held 48 hours after a vehicle seizure.) And the concurrence doesn’t pretty up its take on Wayne County’s actions.
Wayne County claims that it seizes cars to fight crime (and holds onto them for months for the same reason). But the County is happy to return those very cars as soon as it gets paid. That practice proves the County’s scheme is simply a money-making venture—one most often used to extort money from those who can least afford it.
That’s all it is and that’s all it’s ever been. But now the county must justify its actions within two weeks or return the vehicle. That alone might be enough to discourage baseless seizures, especially if this shortened time frame makes it far more likely the car’s owner will attend the hearing. When the government has all the time and money in the world to do something, it will generally achieve its goals. But when constrained, even a bit, it may find it a bit more difficult to justify taking residents’ stuff just because it can.