When C.J. Ciaramella wrote about the story of Justyna and Matt Kozbial’s building being seized for forfeiture by Highland Park, Michigan, it evoked a curious reaction. It wasn’t just the outrage about the ordinary scheme of civil in rem forfeiture, the taking of “things” the government claims was used in or derived from crime. That’s been going on for the past decade or so, even though in rem forfeiture has been going since the ’80s with few outside of the criminal defense bar caring.
As in rem forfeiture spread from putative drug dealers and mobsters to ordinary folk, people began to see why it was such a bad idea, a wrong-headed solution when it only affected people society disfavored. When it touched the lives of people who were sympathetic, the epiphany happened. Better late than never, right?
But the Kozbial’s story struck a different note.
The city officials found a marijuana grow operation inside. The Kozbials, immigrants from Poland, say they had a state license to grow medical marijuana, but the city seized the building anyway and held on to it for 17 months without charging them with a crime.
Nothing unusual so far.
In a response to an interrogatory filed in the Kozbials’ subsequent lawsuit against Highland Park, a city police officer answered “none” when asked to identify any predicate felony offenses justifying the seizure.
This might seem a bit weird to non-lawyers, but no predicate felony is required. They walked into a pot growhouse, illegal under federal law sufficient to create a plausible basis for federally adopted forfeiture.
Things then took a highly unusual turn when the Kozbials say they received a settlement offer from the town: Stop growing marijuana and buy two vehicles for the local police department.
A February 24, 2021, email provided to Reason by the Kozbials’ attorney, Marc Deldin, shows that a Highland Park police officer, ferrying a message from city attorney Terry Ford, sent the Kozbials quotes for two cars from a local Ford dealership, totaling about $70,000.
Boom. That was it. That was the kicker. That’s what made people’s heads explode.
“Extortion, there’s no other way to explain it,” [Kozbials’ attorney, Marc] Deldin says.
“This is really policing for profit, because instead of finding a crime, pressing charges, and allowing the forfeiture process to work out, they just went and seized the building and said, ‘Give us two cop cars,'” Deldin tells Reason. “There was no crime, and there was no forfeiture process. The goal was never to forfeit this property because Highland Park wouldn’t receive anything. The goal was to extort my client into providing squad cars.”
Well, of course it was extortion. That’s the nature of civil forfeiture settlements, perhaps all settlements if you want to get real about them. But the “thing” seized was a building, not cash or a bank account or some monetary substitute. It’s not as if you can settle the claim by giving back part of the building, the government keeping one wall and returning the other three to the Kozbials.
This is the nature of all forfeiture settlements when the “thing” seized isn’t fungible. If you want your seized car back, the offer will be to pay the government money for its return. Extortion? Of course. They kidnapped your car and demand money or you’ll never see your car again alive. Or you can go through the legal process, which will take years while your car languishes in a pound providing shelter for raccoons and junkyard dogs. Want to guess what condition your car will be in when you finally get it back? Want to guess what its value to you will be when it’s finally returned? Want to guess how you will get around during the years you don’t have a car? If you don’t want to guess, fork up the loot or you lose.
But this was a building, so even though it bears some similarities to cars in that it requires maintenance and can end up used by squatters, it may also be taken better care of than one car among hundreds behind barbed wire. Still, it represented a substantial investment by the Kozbials which, presumably, they were disinclined to lose. And why should they?
The ordinary settlement proposal might involve a payment, representing a portion of the value of the building since the building itself can’t be cut into pieces to be distributed between the parties. But here, they cut out the middle man and went straight for the prize.
People were right to be particularly outraged by the flagrance of this abuse. It’s bad enough that in rem forfeiture happens at all, but that it smells of the mayor and police chief of Highland Park chatting about how the cops need two new cars, and the mayor saying how he doesn’t want to spend more money as people will get mad at him for pissing away their taxes, and the chief, exclaiming, “Hey, I have an idea. Let’s seize the Kozbials’ building and make them buy us a couple cars if they want it back!” “Perfect,” the mayor replies.
But the real difference here isn’t much of a difference at all. They’ve just stripped away the facade that forfeiture isn’t a money maker, and hence a money substitute for taxes for municipalities to use like an ATM. Sure, there are worse scenarios, such as when forfeitures inure directly to the benefit of the police departments, whether be using the cars seized or the proceeds going to the police retirement fund, albeit as a substitute for municipal contributions.
It’s good that people can still get outraged by such a blatant abuse of authority as the government seeking cop cars in exchange for a baselessly seized building. It’s unfortunate that it takes something unusual to remind people that in rem civil forfeitures haven’t gone away and are still being used to swipe people’s property as a government cash machine.