Category Archives: asset forfeiture

Civil Asset Forfeiture Model Language

Model language for a municipal charter amendment to address civil asset forfeiture. This language has been tailored to Michigan cities.

New Section ____ of the Charter of the City of ­­____, Michigan

Section ____. Property Seizure and Forfeiture.

As used in this section, “property” shall be liberally construed to include assets and possessions; “employee” includes anyone acting under the authority of the city. A conviction of a criminal offense is a prerequisite to forfeiture and the transfer to the City of _____ of title to property directly used in or derived from that offense. All revenues from forfeited property, including revenue derived from sharing proceeds of forfeited property from cooperation with other federal, state, or local agencies, shall be placed in a separate fund, used only to pay costs directly related to local street repair, and shall not be earmarked or allocated to law enforcement or code enforcement. At any time, a property owner may ask the City or a court to return property that was wrongly seized or because there is no reason for the City to continue to hold the property. No bond shall be required on any property seized under authority of the city. If property is wrongfully seized, the City has no reason to continue to hold the property, or the property owner is not convicted of a criminal offense that has a forfeiture provision, the city shall return, replace, or provide full compensation for any property damaged, defaced, or devalued as a result of seizure by city employees. Records of all property seizures shall be indexed by date, department, name of owner, property type, and seizure value, and include details of the conviction. These records shall be published monthly on the city’s publicly-accessible website consistent with Michigan’s Freedom of Information Act 442 of 1976.

 

Let’s break it down:

 

The language is a proposed charter amendment. The first line identifies this as a new law, gives the section of the charter, and the city name. If the language is approved this will not appear in the charter.

New Section ____ of the Charter of the City of ­­____, Michigan

 

Section title. This will appear in the charter. Not everyone is familiar with the phrase “civil asset forfeiture.” In this model “Property Seizure” was used to clarify the issue.

Section ____. Property Seizure and Forfeiture.

 

It is common to provide definitions for terms in the amendment.

                As used in this section, “property” shall be liberally construed to include assets and possessions; “employee” includes anyone acting under the authority of the city.

 

This is the meat and potatoes. Don’t take property unless a law has been broken, and then only take the property involved in the crime or gained because of the crime.

A conviction of a criminal offense is a prerequisite to forfeiture and the transfer to the City of _____ of title to property directly used in or derived from that offense.

 

This line is for cases of forfeiture with a conviction and to address revenue sharing with a state or federal agencies. Law enforcement should not be policing for profit. Proceeds from the sale of property should not go to those taking the property. In this model, the money is used for street repair. Check state statutes, forfeiture proceeds may be required to go into a specific fund. This model attempts to address the problem of local law enforcement teaming up with federal or state agencies to avoid state or local prohibitions on civil asset forfeiture.

All revenues from forfeited property, including revenue derived from sharing proceeds of forfeited property from cooperation with other federal, state, or local agencies, shall be placed in a separate fund, used only to pay costs directly related to local street repair, and shall not be earmarked or allocated to law enforcement or code enforcement.

 

Property owners should not be deprived of their assets indefinitely.

At any time, a property owner may ask the City or a court to return property that was wrongly seized or because there is no reason for the City to continue to hold the property.

 

Many states require a property owner to pay a bond before they are allowed to challenge a seizure.

No bond shall be required on any property seized under authority of the city.

 

If the items seized are perishable or have been damaged, the government should replace or fix the property. It’s important innocent owners not be penalized.

If property is wrongfully seized, the City has no reason to continue to hold the property, or the property owner is not convicted of a criminal offense that has a forfeiture provision, the city shall return, replace, or provide full compensation for any property damaged, defaced, or devalued as a result of seizure by city employees.

 

Transparency is needed to ensure the city complies with the law. This model includes the statutes dealing with government transparency in Michigan.

Records of all property seizures shall be indexed by date, department, name of owner, property type, and seizure value, and include details of the conviction. These records shall be published monthly on the city’s publicly-accessible website consistent with Michigan’s Freedom of Information Act 442 of 1976.

 

 

Civil Asset Forfeiture

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Michigan Forfeiture Reporting 2015

From Michigan Capitol Confidential:

A package of bills designed to give the public access to information on property seized by, or forfeited to, government entities is under consideration by a state House committee. The legislation would require government entities across the state to submit annual reports to the Michigan State Police (MSP) on property they’ve seized or received through forfeiture. The information would be compiled, issued in an annual report to the Legislature and posted on the MSP website.

AssetForfeitureBillsSummary

HB 4500 Introduced by Representative Jim Runestad

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
SEC. 79D. (1) BEGINNING FEBRUARY 1, 2016, EACH REPORTING AGENCY SHALL REPORT ALL SEIZURE AND FORFEITURE ACTIVITIES UNDER THIS ACT TO THE DEPARTMENT OF STATE POLICE AS REQUIRED UNDER THE UNIFORM FORFEITURE REPORTING ACT.
(2) BEGINNING FEBRUARY 1, 2016, EACH REPORTING AGENCY IS SUBJECT TO AUDIT AS REQUIRED UNDER THE UNIFORM FORFEITURE REPORTING ACT.
(3) AS USED IN THIS SECTION, “REPORTING AGENCY” MEANS THAT TERM AS DEFINED IN SECTION 7 OF THE UNIFORM FORFEITURE REPORTING  ACT.

HB 4503 Introduced by Representative Triston Cole

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
SEC. 4710. (1) BEGINNING FEBRUARY 1, 2016, EACH REPORTING AGENCY SHALL REPORT ALL SEIZURE AND FORFEITURE ACTIVITIES UNDER THIS CHAPTER TO THE DEPARTMENT OF STATE POLICE AS REQUIRED UNDER THE UNIFORM FORFEITURE REPORTING ACT.
(2) BEGINNING FEBRUARY 1, 2016, EACH REPORTING AGENCY IS SUBJECT TO AUDIT AS REQUIRED UNDER THE UNIFORM FORFEITURE REPORTING ACT.
(3) AS USED IN THIS SECTION, “REPORTING AGENCY” MEANS THAT TERM AS DEFINED IN SECTION 7 OF THE UNIFORM FORFEITURE REPORTING ACT.

HB 4504 Introduced by Representative Klint Kesto

A bill to create the uniform forfeiture reporting act; to require certain reports by reporting agencies regarding seized and forfeited property; to prescribe the powers and duties of certain local and state officials; to provide for certain fees and the expenditure of those fees; to require certain audits; to require certain reports by the department of state police; to provide for the withholding of law enforcement funds under certain circumstances; and to repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. This act shall be known and may be cited as the “uniform forfeiture reporting act”.
Sec. 2. (1) Subject to subsections (2) and (3), before February 1 of each year, each reporting agency shall submit a report to the department of state police summarizing the reporting agency’s activities for the preceding calendar year regarding the forfeiture of property under sections 7521 to 7533 of the public health code, 1978 PA 368, MCL 333.7521 to 333.7533, chapter 38 of the revised judicature act of 1961, 1961 PA 236, MCL 600.3801 to 600.3840, and chapter 47 of the revised judicature act of 1961, 1961 PA 236, MCL 600.4701 to 600.4709. The annual report shall contain the following information, as applicable:
(a) The number of forfeiture proceedings that were instituted in the circuit court by the reporting agency.
(b) The number of forfeiture proceedings instituted by the reporting agency that were concluded in the circuit court.
(c) The number of all forfeiture proceedings instituted by the reporting agency that were pending in the circuit court at the end of the year.
(d) The number of forfeitures effectuated by the reporting agency without a forfeiture proceeding in the circuit court.
(e) The number of forfeiture proceedings subject to a plea or any other similar agreement involving the property owner and reporting agency.
(f) An inventory of property received by the reporting agency. Property shall be reported in accordance with each of the following categories:
(i) Residential real property.
(ii) Industrial or commercial real property.
(iii) Agricultural real property.
(iv) Money, negotiable instruments, and securities.
(v) Weapons.
(vi) Motor vehicles and other conveyances.
(vii) Other personal property of value.
(g) Each property inventoried under subdivision (f) shall include a description that contains the following information, as applicable:
(i) The date the property was seized.
(ii) The final disposition of the property, including the date the property was ordered forfeited or disposed of.
(iii) The estimated value of the property.
(iv) The violation or nuisance alleged to have been committed for which forfeiture is authorized.
(v) Whether any person was charged with the violation for which forfeiture is authorized and whether that person was ultimately convicted of that violation.
(vi) The number of claimants to the property.
(vii) Whether the forfeiture resulted from an adoptive seizure. As used in this subdivision, “adoptive seizure” means that all of the following apply:
(A) The seizure resulted from a violation of state law and there is a federal basis for the forfeiture action.
(B) All of the preseizure activity and related investigations were performed by this state or the local reporting agency before a request was made to the federal government for adoption.
(C) The seizure did not result from a joint investigation or task force case.
(h) The net total proceeds of all property forfeited through actions instituted by the reporting agency that the reporting agency is required to account for and report to the state treasurer under either of the following, as applicable:
(i) 1919 PA 71, MCL 21.41 to 21.55.
(ii) The uniform budgeting and accounting act, 1968 PA 2, MCL  141.421 to 141.440a.
(i) For forfeiture proceedings instituted under the public
health code, 1978 PA 368, MCL 333.1101 to 333.25211:
(i) A statement explaining how any money received by the reporting agency under section 7524(1)(b)(ii) of the public health code, 1978 PA 368, MCL 333.7524, has been used or is being used for law enforcement purposes.
(ii) A statement of the number of lights for plant growth or scales donated under section 7524(2) of the public health code, 1978 PA 368, MCL 333.7524, the total value of those lights or scales, and the elementary or secondary schools or institutions of higher education to which they were donated.
(j) For nuisance proceedings instituted under chapter 38 of the revised judicature act of 1961, 1961 PA 236, MCL 600.3801 to 600.3840, a statement explaining how net proceeds were directed under section 3835 of the revised judicature act of 1961, 1961 PA 236, MCL 600.3835.
(k) For forfeiture proceedings instituted under chapter 47 of the revised judicature act of 1961, 1961 PA 236, MCL 600.4701 to 600.4709, the amount of money received under section 4708(1)(f) of the revised judicature act of 1961, 1961 PA 235, MCL 600.4708, that was used to enhance enforcement of criminal laws and the amount of money that was used to implement the William Van Regenmorter crime victim’s rights act, 1985 PA 87, MCL 780.751 to 780.834.
(2) Subsection (1) applies only to proceedings commenced on or after the effective date of this act.
(3) Subsection (1)(g) through (k) applies only to proceedings that have been finalized for purposes of appeal.
Sec. 3. A null report shall be filed under this act by a reporting agency that did not engage in any forfeitures during the reporting period.
Sec. 4. A reporting agency may use forfeiture proceeds to pay the reasonable costs associated with compiling, analyzing, and reporting data under this act.
Sec. 5. (1) The records of a reporting agency regarding the forfeiture of any property that is required to be reported under this act shall be audited in accordance with 1 of the following, as applicable:
(a) 1919 PA 71, MCL 21.41 to 21.55.
(b) The uniform budgeting and accounting act, 1968 PA 2, MCL 141.421 to 141.440a.
(2) The records of a reporting agency regarding the forfeiture of any property required to be reported under this act may be audited by an auditor of the local unit of government.
Sec. 6. The department of state police shall compile the information reported to the department under sections 2 and 3. Beginning January 1, 2016, the department shall file an annual report of its findings under this section with the secretary of the senate and with the clerk of the house of representatives and shall place a copy of the report on its departmental website. The report shall be filed not later than July 1 of each year. The report shall identify any state departments or agencies or local units of government that have failed to properly report the information required under sections 2 and 3 with the department of state police.
Sec. 7. As used in this act:
(a) “Local unit of government” means a village, city, township, or county.
(b) “Reporting agency” means 1 of the following:
(i) If property is seized by or forfeited to a local unit of government, that local unit of government.
(ii) If property is seized by or forfeited to this state, the state department or agency effectuating the seizure or forfeiture.

HB 4506 Introduced by Representative Jason Sheppard

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
SEC. 7524B. (1) BEGINNING FEBRUARY 1, 2016, EACH REPORTING AGENCY SHALL REPORT ALL SEIZURE AND FORFEITURE ACTIVITIES UNDER THIS ARTICLE TO THE DEPARTMENT OF STATE POLICE AS REQUIRED UNDER THE UNIFORM FORFEITURE REPORTING ACT.
(2) BEGINNING FEBRUARY 1, 2016, EACH REPORTING AGENCY IS SUBJECT TO AUDIT OR REQUIRED UNDER THE UNIFORM FORFEITURE REPORTING ACT.
(3) AS USED IN THIS SECTION, “REPORTING AGENCY” MEANS THAT TERM AS DEFINED IN SECTION 7 OF THE UNIFORM FORFEITURE REPORTING ACT.

HB 4507 Introduced by Representative Brandt Iden 

 THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
SEC. 3841. (1) BEGINNING FEBRUARY 1, 2016, EACH REPORTING AGENCY SHALL REPORT ALL SEIZURE AND FORFEITURE ACTIVITIES UNDER THIS CHAPTER TO THE DEPARTMENT OF STATE POLICE AS REQUIRED UNDER THE UNIFORM FORFEITURE REPORTING ACT.
(2) BEGINNING FEBRUARY 1, 2016, EACH REPORTING AGENCY IS SUBJECT TO AUDIT AS REQUIRED UNDER THE UNIFORM FORFEITURE REPORTING ACT.
(3) AS USED IN THIS SECTION, “REPORTING AGENCY” MEANS THAT TERM AS DEFINED IN SECTION 7 OF THE UNIFORM FORFEITURE REPORTING ACT.

 

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Farming The Poor Via Municipal Court

In metro St. Louis many municipalities seem to be farming the public. They issue questionable citations, with large fines and stack on fees. This video gives a great explanation.

What needs to be done to change the practice of farming the public (especially the poor) for fines? What type of initiative would you propose?

 

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Innocent Until Proven Guilty

Innocent until proven guilty? Maybe.

However, your property is not innocent until proven guilty.

From Michigan:

Current state law allows the Michigan State Police and other law enforcement agencies to raid a home, confiscate property, sell it, and deposit the money in the department coffers all without a conviction but merely on suspicion that drug violations occurred.

Unfortunately this is not a Michigan issue. It’s become more and more common as a result of the federal government’s war on drugs. There is good news, several states have introduced legislation to restrict government’s ability to grab property without a conviction.

Representative Jeff Irwin in Michigan introduced a bill to prohibit forfeiture of property by law enforcement unless a person is convicted of a crime. HB4361

Also New Mexico HB0560

New Mexico police must now convict you of a crime and prove your property was used in the crime before you forfeit it to the authorities. Also, the money gained from the property will now go to the state’s general fund instead of police budgets, so that police do not have incentives to take from citizens.

Additional bills have been introduced in: Texas, Oklahoma, Maryland, Indiana (transparency only but a step in the right direction), and Florida.

It’s not all good news, bills to reform asset forfeiture have been shut down in: Virgina, Wyoming, and Colorado.

A bill to expand the government’s power to seize your property has been introduced in California.

Several groups are working to stop government from using asset forfeiture to encroach on property rights. For more info I recommend Americans For Forfeiture Reform.

 

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