Former State Trooper: Cops, Prosecutors Misuse Problematic Asset Forfeiture Law

Editor's Note: This article was updated to note that when civil asset forfeiture first began to be used in Michigan, narcotics enforcement would obtain the proceeds of criminal activity.

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.