By Jarrett Skorup and Kirby Thomas West
Governments violate the Constitution when they seize and try to keep property without a timely hearing. The Supreme Court said so on May 9. But Michigan retiree Gerald Ostipow has a different problem.
He and his late wife had a hearing and won their case — eight years ago. But the Saginaw County Sheriff’s Department in Michigan refuses to return their stuff. The agency did not even wait for final resolution before claiming the couple’s nearly restored 1965 Chevrolet Nova. In fact, the agency drove the vehicle for 56,000 miles, then sold it and spent the cash while the case was still open.
Saginaw County did not care that neither Ostipow nor his wife did anything wrong.
State law allows police agencies to seize property and turn it over to prosecutors to litigate the transfer of title using civil forfeiture. This Kafkaesque maneuver flips the rules of justice upside down. Instead of prosecuting a person, the government puts property on trial. No arrest or conviction of a human may be necessary for the government to gain ownership of seized assets.
Innocent property owners frequently suffer. But if they prevail, the government is supposed to give back what it took. Otherwise, temporary possession becomes a permanent loss. This violates the Fifth Amendment, which requires a fair process before the government takes property.
All Ostipow has received is broken promises.
Lawmakers need to clean up the civil forfeiture mess, and the Supreme Court could help by accepting Ostipow’s case. He filed a petition for review in April after losing at the 6th U.S. Circuit Court of Appeals.
His ordeal started in 2008 when his wife and son were still alive. The couple let their adult son move into their restored farmhouse down the road from their primary residence in Shiawassee County, Michigan.
Based on a tip that the son was growing marijuana, deputies from neighboring Saginaw County obtained a search warrant and descended on the property. They found marijuana growing in the farmhouse, but they did not just seize the plants and gardening tools. They made off with what Ostipow’s lawyers describe as “possessions gathered over a lifetime of hard work,” including family heirlooms and the vehicle.
The son was convicted. But Ostipow and his wife denied knowledge of or involvement in his illegal gardening, and the couple never faced charges. Yet Saginaw County sought forfeiture of the entire farmhouse and its contents, other buildings on the land, and even an antique firearms collection at the Ostipows’ primary home.
Unwilling to let law enforcement simply steal their belongings, the Ostipows fought back in state court. The dispute should have ended when their son died in 2022, if not sooner. But 16 years after the initial seizure and eight years after beating civil forfeiture, Ostipow is still waiting for justice.
The value of everything he lost is $233,000. Yet Saginaw County has ignored Gerald’s demands, forcing him to turn to the federal courts for relief. His only hope now is the Supreme Court. A win would put police and prosecutors on notice.
Some Supreme Court justices already recognize the need for reform. A concurring opinion in the May 9 case, written by Justice Neil Gorsuch and joined by Justice Clarence Thomas, notes that forfeiture has become a “booming business” nationwide with billions of dollars in annual revenue. Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson also expressed concerns about civil forfeiture in a dissenting opinion.
The high court could address at least one aspect of civil forfeiture by accepting Ostipow’s case. Congress could do its part by passing the Fifth Amendment Integrity Restoration, or FAIR, Act, H.R. 1525, a bipartisan measure that would bring significant reforms. And Michigan lawmakers could end civil forfeiture, or at least clean it up, at the state level.
These would all be steps in the right direction. But the bigger need is to end civil forfeiture entirely and replace it with criminal forfeiture, which provides built-in safeguards for innocent people.
As long as civil forfeiture remains, abuses will continue. Governments must slam the brakes on a moneymaking scheme that is out of control.
Jarrett Skorup is vice president for Marketing and Communications at the Mackinac Center for Public Policy in Michigan. Kirby Thomas West is an attorney at the Institute for Justice in Arlington, Virginia.