“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Sixth Circuit judge Joan Larsen wrote a decision affirming the dismissal of a case brought by a man whose car was seized and held for three years, even though he was never charged with a criminal offense. The August 2020 case is Nichols v. Wayne County.

A Lincoln Park, Michigan police officer conducted a traffic stop of Wayne Nichols, and determined that the insurance certificate Nichols provided was invalid. He then seized Nichols’ car and gave him a notice stating that the car was subject to forfeiture under a Michigan state law designed to help combat identity theft, which provided that any property used in connection with identity theft could be seized and forfeited. To contest the forfeiture, Nichols was required to post a $250 bond with the Wayne County prosecutor’s office, which he did.

Under the law, the relevant prosecutor’s office is required to “promptly” institute forfeiture proceedings concerning any seized property. Yet Nichols was never charged with identity theft or any other crime, and no proceedings were begun over the next three years. Nichols then filed a lawsuit against the city and the county, claiming that they had violated his due process rights under the Constitution and seeking the return of his car and damages for the significant costs and inconvenience he suffered while his car was seized. Wayne County then finally returned the car, and although Nichols, therefore, dropped his demand that the car be returned, he continued to seek damages. A district court dismissed the case as a matter of law, and he appealed

Trump judge Larsen wrote a 2-1 ruling affirming the dismissal of Nichols’ case. She maintained that Nichols had failed to allege that a “policy or custom” of either municipality was responsible for the deprivation of what was arguably his right to a “timely” hearing upon seizure of his property, contrary to what she claimed was required by Supreme Court case law.

Judge Karen Nelson Moore strongly dissented. She criticized the majority for misreading Nichols’ complaint, which she explained did allege that the city and the county had a consistent practice, which amounted to a “policy or custom” under the law, of seizing “hundreds of vehicles every year,” and holding them without providing “prompt” hearings for “months, or even years.”  In essence, she went on, the complaint contended that “as a policy or custom,” the municipalities “are allowing too much time to pass without giving claimants a chance to repossess their property.” The court should have followed “the only published, appellate decision on point,” she went on, in which the Second Circuit, in an opinion by then-Judge Sotomayor, ruled that “failure to provide some sort of retention hearing for purported owners of seized property violates the Constitution.” Moore concluded that Nichols should have been allowed to proceed with his case.

Larsen’s contrary opinion does more than leave Wayne Nichols without a remedy in his case. As Judge Moore pointed out, Larsen’s opinion effectively authorizes “seizing Michiganders’ vehicles” for an indefinite period without a chance for them to contest the seizure or demonstrate “the extreme hardship posed by such seizure.”