In February of 2016, the Michigan legislature passed laws that significantly change how police departments across the state engage in civil forfeiture, a process that has long been controversial because it contradicts the traditional maxim of innocent until proven guilty.
What is Civil Forfeiture?
There are two processes for forfeiture in Michigan: civil forfeiture and criminal forfeiture. Under both processes, police departments can seize items of personal property, such as automobiles and cash, which they suspect have been involved in criminal activity. The difference between the two processes ultimately boils down to two points: who has the burden of proof and what they must prove.
With criminal forfeiture, the burden of proof is on the government, and they must prove beyond a reasonable doubt that the property was used to commit a crime. In a criminal forfeiture action, the government brings an action to temporarily seize a criminal defendant’s property at the same time that he or she is charged with a crime. The police then temporarily confiscate the property until the conclusion of the owner’s case. If the owner is convicted, the property becomes government property; if he or she is found innocent, the property must be returned.
With civil forfeiture, the police are not required to formally charge the owner with a crime before seizing the property; they need only have a suspicion that a crime has taken place. To seize property, the police need only show that it was more likely than not that the property was used in the commission of that crime. Once the property has been seized, the burden of proof shifts to the property owner, who must prove that it is more likely than not that the property was not used in the commission of a crime. If they cannot meet this burden, the seized items will permanently become government property.
The Effect of the New Reforms
Civil forfeiture in Michigan is controversial because it allows police departments to seize personal property with limited evidence, and because it forces the property owner to prove their innocence, rather than forcing the government to prove their guilt.
The new laws enacted by the Michigan legislature aim to make it more difficult for the police to seize property under civil forfeiture. Under the new law, instead of being required to prove their suspicion that the property was used for criminal activity by a preponderance of the evidence (i.e. that such criminal activity was “more likely than not”), police must show criminal use by “clear and convincing evidence”. While this standard is still easier for police to meet than the “beyond a reasonable doubt” standard used for criminal forfeiture, it is significantly harder for the police to meet than the previous standard.
The Importance of Representation in Contesting Civil Forfeiture
Even with the new reforms, it is likely that reclaiming property seized by police under civil forfeiture will remain a difficult and time-consuming process. Often the government will require the property owner to post a bond equal to 10% of the property’s value before the owner can contest its seizure. Even after posting this bond, the process requires the property owner to negotiate with the prosecutor’s office, during which time, they may face significant hardship resulting from their inability to use the seized property.
If you or someone you know has had their personal property seized by the police under civil forfeiture, the most important thing that you can do to maximize your chances is to secure effective legal representation. An experienced attorney can help you navigate the confusing requirements involved in the civil forfeiture process and give you a critical edge in negotiations with the prosecutor’s office for the return of your property. With decades of experience in contesting forfeiture cases, Peter J. Johnson is one of most experienced and reputable defense attorney in Southwest Michigan. To schedule a free consultation regarding your property seized under civil forfeiture, contact Peter J. Johnson Law Office, PLLC at 269.982.1100 or visit www.AttorneyPeterJohnson.com.