This post comes to us from our Michigan colleague Michael Komorn, and was originally posted at the Komorn Law blog.
Perhaps the most painful and profitable aspect of many police raids is the civil forfeiture process. Unlike criminal forfeiture, in civil forfeiture people do not need to be convicted or even charged with a crime to lose their cash, cars and property. Patients and caregivers in Michigan are all too familiar with this abusive police practice. My clients have had everything from cars, tv’s, cash, computers, wedding rings, power tools and even priceless family heirlooms stolen from them by police during raids on their homes. Anything that the police find of value, they are sure to take.
The typical raid goes something like this:
1) The police enter the family home at night with ski-masks, vests, and guns drawn. They look more like paramilitary units than police.
2) They force family members, including elder grandparents and young children face first onto the ground, sometimes separating them from critical devices such as oxygen tanks or other medical necessities.
3) They destroy the home, ripping apart bedrooms and mattresses, breaking or prying doors open, putting holes in the walls, slashing furniture. Sometimes my clients have not been present during the raid, and come home to find what looks like a burglary, only to find out it was the cops who stole their things and left a trail of destruction in their wake.
4) Perplexingly, no charges are filed. At least not at that moment. Medical Marijuana Patients and Caregivers are left in limbo for months, sometimes years before they are charged with a crime.
5) My clients are given 21 days to claim their items, and must pay top dollar to reacquire them from the police who stole them. How are you supposed to get to work without your car? People who have not been charged with a crime are forced to pay a ransom just to get their much needed work cars, trucks, or computers back.
So what happens to that property? More often than not, it is auctioned off never to be seen again, or sold back to the owner for a considerable profit. The police get to keep every penny and with it, buy more powerful guns, flashy motorcycles and military-style vehicles, or form their own SWAT teams, to name a few examples. Each department puts more money into their armories rather than into education and classes for their officers.
The police in Michigan have not been taught about the MMMA. I know this because when I get them on the stand, you wouldn’t believe the things they say when asked simple questions about it. This could be because the only training many Michigan police have came when they were made to attend private seminars (which I was barred from attending) which dealt specifically with the Michigan Medical Marijuana Act, hosted by Attorney General Bill Schuette. Schuette called these seminars, “Clearing the Air,” and in them told police that if they returned the marijuana they seized from legal, card holding caregivers and patients, they would be violating federal law and could be charged with delivery of a controlled substance.
The content of these seminars has since been posted online and can be viewed here: http://annarborchronicle.com/wp-content/uploads/2011/11/Schuette-Seminar.pdf
The people of Michigan didn’t pass the MMMA in 2008 to make it easier for police to catch people who use marijuana, or to create criminals out of police, for that matter. With the highest legal authority in the state telling police that they are committing a crime if they follow state law, we have a clear conflict of interest.
As we see more states enacting not only medical marijuana legalization, but legalization for recreational use, the practice of civil forfeiture becomes threatened, and police will do anything to protect their cash cow. In the 42 states that allow police departments to profit from forfeiture, that cash flow has funded both the militarization of police and allowed law enforcement to make ridiculous purchases, including a margarita machine, a Hawaiian vacation, and a Dodge Viper.
Nationwide, the Wall Street Journal reported the federal government acquired $1 billion in forfeiture from marijuana cases over the past decade. With legalization now in place in Colorado and Washington, with other states sure to follow, forfeiture revenue for the police departments that have relied on it is threatened. According to one report, legal cannabis and the subsequent drop in forfeiture have already caused one drug task force in Washington to cut its budget by 15 percent. That’s great news for due process and property rights. But the police have a trick up their sleeve which allows the to usurp the state legalization efforts and enforce federal law instead. It’s called “equitable sharing.” Local and State enforcement teams can still profit from civil forfeiture by collaborating with Federal Law Enforcement.
Equitable sharing is a two-way street: For the federal government to “adopt” a forfeiture case, cops can approach the feds and vice-versa. The U.S. Department of Justice has applications online for agencies to apply for adoption and to transfer federally forfeited property. Crucially, criminal charges do not have to accompany a civil forfeiture case.
The proceeds from federal forfeitures are deposited into the DOJ’s Asset Forfeiture Fund. After the DOJ determines the size of the cut for the feds, equitable sharing allows the local police to take up to 80 percent of what the property is worth. In fiscal year 2012, the federal government paid out almost $700 million in equitable sharing proceeds to local and state law enforcement agencies.
Equitable sharing tempts cops to become bounty hunters, even in states with legal marijuana. Tony Jalali is living proof of this travesty. Jalali almost lost his businessover four grams of marijuana.
After immigrating to the United States from Iran in 1978, Jalali became a successful small business owner. Jalali owns an office building in Anaheim, Calif.—worth around $1.5 million—that he rents out to fund his retirement.
Among the more staid tenants—a dentist’s office, an insurance company—was ReLeaf Health & Wellness, a medical marijuana dispensary. Posing as a patient with a legitimate doctor’s recommendation, an undercover Anaheim police officer bought $37 worth of cannabis from that dispensary. Keep in mind that medical marijuana sales were—and are—legal in California under state law, and this Anaheim cop worked for local law enforcement, not the feds.
Jalali never bought or sold marijuana. Jalali was not charged with any crime nor was he warned that renting to a dispensary could lead to civil forfeiture. “I had no idea I was doing anything wrong,” Jalali said.
Yet for the DEA, which collaborated with Anaheim police in pursing the forfeiture, that $37 pot sale was enough evidence that Jalali should lose his property.
This should not have happened under California law. Not only did California voters legalize medical marijuana in 1996, state law bans forfeiting real property (like a home or a business) unless the owner has been convicted of a crime related to the property. In fact, Anaheim authorities even requested aid from California prosecutors to take action against Jalali’s property. State officials refused.
But the state’s protections don’t exist on the federal level. By participating in equitable sharing, Anaheim police could directly benefit from a federal forfeiture, bypassing California law to cash in on Jalali’s property.
The equitable sharing loophole still exists. The federal government can continue to prosecute criminal cases and litigate civil forfeiture actions related to cannabis. Citing the risk of federal forfeiture, Wells Fargo, one of Colorado’s largest banks, has refused to finance properties in that state’s marijuana industry. The incentives behind equitable sharing are primed for abuse. Property owners’ protection from forfeiture currently depends on prosecutorial discretion. That is no substitute for meaningful legal reform.