NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0486n.06
No. 19-1056
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
) FILED
STEPHEN NICHOLS, ) Aug 18, 2020
) DEBORAH S. HUNT, Clerk
Plaintiffs-Appellant, )
)
v. )
ON APPEAL FROM THE
)
UNITED STATES DISTRICT
WAYNE COUNTY, MICHIGAN; WAYNE )
COURT FOR THE EASTERN
COUNTY, MICHIGAN PROSECUTOR’S )
DISTRICT OF MICHIGAN
OFFICE; CITY OF LINCOLN PARK, MICHIGAN; )
KYM L. WORTHY, )
)
Defendants-Appellees. )
)
Before: MOORE, McKEAGUE, and LARSEN, Circuit Judges.
LARSEN, Circuit Judge. A police officer seized Stephen Nichols’ car for its suspected
involvement in a violation of Michigan’s Identity Theft Protection Act. The car was detained in
anticipation of civil forfeiture, but the prosecutor never instituted forfeiture proceedings. Nichols
eventually got his car back after he filed an action against several local government entities,
asserting, as relevant here, Monell liability under 42 U.S.C. § 1983. See Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 691 (1978). With his car returned to him, Nichols sought damages for the
local governments’ alleged failure to provide him with constitutional process. Specifically, he
claimed that the Due Process Clause entitled him to an intervening hearing (after the seizure, but
before any forfeiture hearing) at which he could have challenged the post‑seizure detention of his
car prior to and during any forfeiture proceedings. The district court disagreed and dismissed his
No. 19-1056, Nichols v. Wayne County
complaint for failure to state a claim. We affirm because Nichols has failed to allege a municipal
“policy or custom” sufficient to state a Monell claim under § 1983.
I.
Nichols’ car was seized under Michigan’s Identity Theft Protection Act (MITPA). Mich.
Comp. Laws (MCL) §§ 445.61–.79d. MITPA prohibits the “use or [the] attempt to use the
personal identifying information of another person” to “[o]btain credit, goods, services, money,
property, a vital record, a confidential telephone record, medical records or information, or
employment,” or to “[c]ommit another unlawful act.” MCL § 445.65(1). Any personal property
“used, possessed, or acquired in a felony violation of [MITPA]” is subject to forfeiture. MCL
§ 445.79(1)(a).
The statute authorizes the state or a local government to seize forfeitable property either
“upon process issued by the circuit court having jurisdiction over the property” or “without
process” if, among other circumstances, there is probable cause to believe that the property “was
used or is intended to be used in violation of [MITPA].” MCL § 445.79a. If the government seizes
property without process and the property’s total value “does not exceed $50,000.00,” the
government “shall notify the owner” of the seizure and of its intent to forfeit the property. MCL
§ 445.79b(1). If the owner does not contest the forfeiture within 20 days after receiving the notice,
the local government “shall declare the property forfeited.” MCL § 445.79b(1)(d).
If the owner contests the forfeiture, he may “file a written claim” and post a bond with the
government within 20 days “after receipt of the notice.” MCL § 445.79b(1)(c). That claim and
bond are then “transmit[ted]” to the government’s “prosecuting attorney.” Id. The prosecuting
attorney then “shall promptly institute forfeiture proceedings after the expiration of the 20-day
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period.” Id. Owners may seek to recover their seized property via “an order and judgment of the
court having jurisdiction over the forfeiture proceedings.” MCL § 445.79b(2).
II.
According to the allegations in Nichols’ complaint, the events at issue here began when a
City of Lincoln Park police officer asked Nichols for proof of auto insurance as part of a traffic
stop. When the officer determined that the provided insurance certificate was invalid, he seized
Nichols’ car and gave him a notice form indicating that the car was subject to forfeiture under
MITPA. The form explained that to contest the forfeiture Nichols would need to file a “claim of
interest” with Lincoln Park and post a $250 bond with the Wayne County Prosecutor’s Office.
Nichols did so. Nichols was not charged with any criminal offense. Instead, he pleaded
responsible in state court to the civil infraction of operating a motor vehicle without proof of
insurance.
Under MITPA, the Wayne County Prosecutor’s Office was required to “promptly institute
forfeiture proceedings.” MCL § 445.79b(1)(c). Yet, nearly three years later, the county had not
done so, and Nichols’ car had not been returned.1 So Nichols filed a putative class action2 in
federal court, suing the City of Lincoln Park and Wayne County (the municipalities) under 42
1
On the record before us, it is unclear why this happened. Wayne County’s motion to
dismiss attached an email between the county prosecutor’s office and Nichols’ attorney indicating
that, at some point, the assistant prosecutor assigned to Nichols’ case had decided not to pursue
the forfeiture of Nichols’ car but had “overlooked sending that correspondence” to the Lincoln
Park Police Department. The email also indicated that the prosecutor’s office had set up two
meetings with Nichols’ attorney, but the attorney failed to appear both times. But because these
facts do not appear in the complaint, we do not consider them at the motion to dismiss stage. See
Berera v. Mesa Med. Grp., PLLC, 779 F.3d 352, 358 n.7 (6th Cir. 2015) (“Generally, when ruling
on a Rule 12(b)(6) motion to dismiss, courts may not consider information outside the complaint.”
(citing Fed. R. Civ. P. 12(d))).
2
The complaint also named Adam and Ryan Chappell as plaintiffs, but they voluntarily
dismissed their claims before any responsive pleadings were filed.
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No. 19-1056, Nichols v. Wayne County
U.S.C. § 1983.3 He alleged that the municipalities had violated his and all similarly situated
persons’ due process rights through their “practice, custom, policy, and pattern of failing to provide
prompt post-seizure, pre-forfeiture hearings in front of a neutral decision-maker.” He sought
damages as well as declaratory and injunctive relief.
Upon receiving notice of the lawsuit, Wayne County released Nichols’ car to him,
prompting Nichols to later voluntarily dismiss his claims for declaratory and injunctive relief. The
county sought to have the damages claim dismissed as well, on the ground that Nichols had failed
to state a claim under Federal Rule of Civil Procedure 12(b)(6). The county argued that state law
dictated the scope of the county’s forfeiture proceedings and that the county could not, therefore,
be held liable for failing to provide a pre-forfeiture-proceeding hearing. In the alternative, the
county argued that MITPA’s “promptness” requirement satisfied due process.
The district court granted the motion to dismiss. Although it found that the municipalities
do “not routinely provide post-deprivation, pre-forfeiture hearings for civil seizures,” it concluded
that the failure to provide such “an additional hearing d[id] not violate due process.” The district
court therefore dismissed Nichols’ complaint for failure to state a claim.
Nichols timely appealed.
III.
We review de novo a district court’s ruling on a Rule 12(b)(6) motion. Kaminski v. Coulter,
865 F.3d 339, 344 (6th Cir. 2017). When performing that review, we generally consider only the
3
In addition to Lincoln Park and Wayne County, Nichols sued the Wayne County
Prosecutor’s Office and Kym Worthy in her official capacity as the Wayne County Prosecutor.
The last two, along with Wayne County itself, constitute a single, county entity for § 1983
purposes. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Nichols also sued Kym
Worthy in her individual capacity but voluntarily dismissed that claim prior to the district court’s
ruling.
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No. 19-1056, Nichols v. Wayne County
facts alleged in the complaint. Berera v. Mesa Med. Grp., PLLC, 779 F.3d 352, 358 n.7 (6th Cir.
2015). We accept those allegations as true and consider any ambiguity in them in the light most
favorable to the plaintiff, drawing all reasonable inferences in his favor. Kaminski, 865 F.3d at
344. But “[l]egal conclusions couched as factual allegations need not be accepted as true.”
Buddenberg v. Weisdack, 939 F.3d 732, 738 (6th Cir. 2019) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)). To survive a motion to dismiss, therefore, Nichols “must allege facts
that if accepted as true, are sufficient to state a claim to relief that is plausible on its face,” Majestic
Bldg. Maint., Inc. v. Huntington Bancshares, Inc., 864 F.3d 455, 458 (6th Cir. 2017) (citing
Twombly, 550 U.S. at 555), and “are sufficient to ‘raise a right to relief above the speculative
level,’” Rayfield v. City of Grand Rapids, 768 F. App’x 495, 501 (6th Cir. 2019) (quoting Wesley
v. Campbell, 779 F.3d 421, 427 (6th Cir. 2015)). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); see also Bailey v. City of Ann Arbor, 860 F.3d 382, 388 (6th Cir. 2017)
(explaining that “the plausibility standard of Twombly and Iqbal” applies to Monell claims);
Rayfield, 768 F. App’x at 500–01 (applying the plausibility standard to a Monell claim).
IV.
To state a municipal‑liability claim under § 1983, the plaintiff must allege the deprivation
(1) of a right secured by the Constitution or laws of the United States, (2) that was directly caused
by a municipal policy or custom. Hardrick v. City of Detroit, 876 F.3d 238, 243 (6th Cir. 2017).
Nichols does not seek damages from any individual actor for his role in the seizure and
detention of his car.4 Instead, he has sued only the city and the county for depriving him of due
4
It is an open question in this circuit “whether a municipality’s liability under § 1983 is
predicated on first finding that an individual officer or employee is also liable.” Rayfield, 768 F.
App’x at 511 n.12 (noting conflicts in our caselaw). We need not resolve this question here
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No. 19-1056, Nichols v. Wayne County
process by failing to provide a continued‑detention hearing.5 But to prevail in a § 1983 suit against
municipal defendants, Nichols must still allege, and ultimately prove, a constitutional
violation: “if the plaintiff has suffered no constitutional injury, his Monell claim fails.” North v.
Cuyahoga County, 754 F. App’x 380, 389 (6th Cir. 2018) (citing City of Los Angeles v. Heller,
475 U.S. 796, 799 (1986) (per curiam)). Here, Nichols alleges that he was unconstitutionally
deprived of a property interest—the possessory interest in his vehicle from the time of its seizure
until its eventual return—without adequate process. To hold the municipalities liable under
Monell, he must also allege, and ultimately prove, that the municipalities themselves, as opposed
to any municipal employee, were responsible for the prolonged detention of his vehicle without
process. Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013). (“A municipality ‘may not be sued
under § 1983 for an injury inflicted solely by its employees or agents.’” (quoting Monell, 436 U.S.
at 694)).
because we ultimately conclude that Nichols fails to state a claim under Rule 12(b)(6) on other
grounds. We do note our confusion, however, at the ire this brief footnote draws from our
dissenting colleague. Rayfield ably documented “our unsettled precedent on this issue,” id., and
though the dissent strives to untangle our caselaw, we reiterate that we are not resolving the
question here.
5
Nichols’ complaint appears to seek damages for the prolonged detention of his car,
specifically for the “unnecessary depriv[ation] of the use of his vehicle, the opportunity to perform
necessary maintenance on it,” for the cost of “insurance for a vehicle that he can’t use,” and the
cost in time and money he was “forced to pay for rides, . . . taxis[,] and inconvenient public transit
to get to and from work and perform daily necessities of life.” But he did not allege causation—
that the municipalities’ failure to provide an additional hearing caused the prolonged detention of
his car and the attendant harms. To establish causation, he would have had to allege that he would
have prevailed at an intervening hearing if it had been offered, i.e., that the city would have
returned his car earlier. Although Nichols makes that argument on appeal, he does so for the first
time. Despite that missing allegation, he might still be entitled to nominal damages for a violation
of his due process rights. See Carey v. Piphus, 435 U.S. 247, 266 (1978) (holding that “the denial
of procedural due process [is] actionable for nominal damages without proof of actual injury”).
We need not explore the damages question further, however, because Nichols’ complaint is
otherwise deficient.
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No. 19-1056, Nichols v. Wayne County
Constitutional Violation. The Fourteenth Amendment’s Due Process Clause prohibits
states from “depriv[ing] any person of . . . property, without due process of law.” U.S. Const.
amend. XIV, § 1. When state or local governments attempt to deprive an individual of his
property, the Due Process Clause guarantees him an “opportunity to be heard” in “some form of
hearing” “at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319,
333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
Just when a hearing must be held to satisfy the “meaningful time” requirement varies
depending on the kind of property the government seeks to seize. Although due process generally
requires “predeprivation notice and hearing,” in some “extraordinary situations,” a “valid
governmental interest . . . justifies postponing the hearing until after the event.” United States v.
James Daniel Good Real Prop., 510 U.S. 43, 53 (1993) (quoting Fuentes v. Shevin, 407 U.S. 67,
82 (1972)). Those extraordinary situations include government seizure of forfeitable property that
“could be removed to another jurisdiction, destroyed, or concealed, if advance warning of
confiscation were given.” Id. at 52 (quoting Calero–Toledo v. Pearson Yacht Leasing Co., 416
U.S. 663, 679 (1974)). So, for example, “[t]he seizure of a home” or other real property requires
a pre-deprivation hearing, see id. at 54, 61–62, but the seizure of a vehicle does not, see Ross v.
Duggan, 402 F.3d 575, 583–84 (6th Cir. 2004) (ruling that “pre-seizure hearings are not
constitutionally mandated” for cars because they are “mobile property” (emphasis omitted)).
Seizing property that falls into this “mobile property” exception does not let the
government off the due-process hook, however. The government must still provide the owner
with “notice and a timely post-seizure [hearing] prior to forfeiture.” Ross, 402 F.3d at 584
(emphasis omitted) (citing United States v. Von Neumann, 474 U.S. 242, 249–50 (1986)).
Ordinarily, a forfeiture hearing is the post-deprivation process. See James Daniel Good, 510 U.S.
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No. 19-1056, Nichols v. Wayne County
at 52–53; Von Neumann, 474 U.S. at 249–50; United States v. Eight Thousand Eight Hundred &
Fifty Dollars ($8,850) in U.S. Currency, 461 U.S. 555, 562 (1983). Nichols argues, however, that
when the property seized is a car—as opposed to, say, cash or other personal property—due
process demands something more. Relying on Krimstock v. Kelly, 306 F.3d 40, 68 (2d Cir. 2002),
Nichols claims entitlement to a “continued detention hearing,” which would have allowed him to
“dispute the detention of [his] vehicle[] while forfeiture litigation [is] being contemplated or
carried out.” Appellant Br. at 10, 15. Such a hearing, Nichols argues, is necessary to protect his
present possessory interest in his vehicle during the time between seizure and forfeiture. In
essence, he seeks something akin to a Gerstein hearing or a bail hearing for his car. See Gerstein
v. Pugh, 420 U.S. 103 (1975); County of Riverside v. McLaughlin, 500 U.S. 44 (1991).
Nichols vacillates regarding the form he envisions for such a hearing. At times he insists
that a continued-detention hearing is different than a quickly filed or “prompt” forfeiture hearing
under MITPA;6 it must be an additional hearing, between the seizure and the forfeiture hearing.
On this theory, the municipalities’ alleged shortcoming is their failure to supplement MITPA’s
procedures by setting up a scheme for holding an additional, interim hearing.
At other times, however, Nichols retreats from this position, conceding that the
municipalities could satisfy the Constitution through the MITPA process itself. In the district
court, Nichols claimed that MITPA forfeiture proceedings were inadequate because they were not
6
The use of the word “prompt” may have occasioned some of the confusion in this case.
That term is used in MITPA, which requires that a prosecuting attorney “shall promptly institute
forfeiture proceedings after the expiration of the 20-day period” mentioned in the notice. MCL
§ 445.79b(1)(c). But the demands of due process are not defined by state law; the Constitution
may require more, or less, than a state statute. See Rudolph v. Lloyd, 807 F. App’x 450, 454 (6th
Cir. 2020) (explaining that “the minimum level of process required” is “a question of federal
constitutional law” (citing Silberstein v. City of Dayton, 440 F.3d 306, 315 (6th Cir. 2006))). We
are concerned here with a constitutional question alone. When we refer to forfeiture proceedings
being (or not being) initiated promptly, we use that term in its constitutional sense.
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No. 19-1056, Nichols v. Wayne County
“typically” filed quickly enough. In his brief before this court, Nichols argues that the
municipalities could fulfill the putative constitutional requirement of a “continued‑detention
hearing by making it a policy to institute forfeiture actions for vehicles no later than 7 days after
the 20‑day notice period ends.” Appellant Br. at 48. At oral argument, he went further, conceding
that a forfeiture proceeding initiated within 30 days after the 20‑day period (that is, 50 days after
a property owner receives notice) would likewise satisfy due process. By Nichols’ own lights,
then, a quickly filed forfeiture hearing under MITPA can satisfy due process. That concession
matters. Nichols, of course, has no right to elect the means by which the municipalities satisfy the
Constitution. If a quickly filed forfeiture hearing can satisfy due process, as Nichols admits, then
the only constitutional question remaining is, how quick would be quick enough?7
We need not answer that constitutional question, however, because Nichols has failed to
show that the municipalities, as opposed to the unnamed county prosecutor who failed to institute
forfeiture proceedings in his case, worked to deprive him of it. That is, he has not alleged
“deliberate conduct,” “properly attributable to the municipality,” that is the “moving force” behind
the alleged constitutional violation. Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997)
(emphasis omitted).
Policy or Custom. In Monroe v. Pape, the Supreme Court held that municipalities were
not subject to liability under § 1983. 365 U.S. 167, 187 (1961). Monell reversed that decision,
holding that “Congress intended potential § 1983 liability where a municipality’s own violations
were at issue but not where only the violations of others were at issue. The ‘policy or custom’
requirement rests upon that distinction and embodies it in law.” Los Angeles County v. Humphries,
7
We do not know the outer boundaries of Nichols’ position, as the court redirected its line
of questioning, once learning that, at a minimum, Nichols viewed a forfeiture proceeding filed 50
days after notice as satisfying due process.
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No. 19-1056, Nichols v. Wayne County
562 US 29, 37 (2010). It ensures that “‘municipal liability under § 1983 attaches where—and only
where—a deliberate choice to follow a course of action is made from among various alternatives’
by city policymakers.” City of Canton v. Harris, 489 U.S. 378, 389 (1989) (quoting Pembaur v.
City of Cincinnati, 475 U.S. 469, 483 (1986) (plurality opinion)).
At the pleading stage, Nichols may establish that the municipalities have “such a policy or
custom” by alleging facts that show “(1) the existence of an illegal official policy or legislative
enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the
existence of a policy of inadequate training or supervision; or (4) the existence of a custom of
tolerance or acquiescence of federal rights violations.” Burgess, 735 F.3d at 478.
Nichols has raised only one purported custom or policy for our review—the municipalities’
failure to provide a continued‑detention hearing, which he concedes could take the form of a
sufficiently speedy forfeiture proceeding. But he cannot avail himself of the first two Burgess
categories. He points to no “official policy or legislative enactment,” id., instructing prosecutors
to drag their feet in instituting MITPA forfeiture hearings. Nor does he aver “that an official with
final decision making authority ratified” or made a decision not to initiate proceedings quickly.8
Id. Accordingly, he must rest solely on the last two categories: “the existence of a policy of
inadequate training or supervision” or, perhaps, “the existence of a custom of tolerance or
acquiescence of federal rights violations.” Id. We address these arguments in turn.
Failure to Train. We begin with Nichols’ allegation that the county prosecutor “failed to
train and supervise attorneys acting for the defendants in the need to . . . provide for prompt
8
Although the complaint names Wayne County Prosecutor, Kym Worthy, as “the final
policy maker for the municipal Defendants” and claims she is “responsible for this unconstitutional
practice, custom, policy and pattern,” such “threadbare recitals” do not suffice. Iqbal, 556 U.S. at
678. The only factual allegation Nichols makes with respect to Worthy’s conduct concerns the
failure-to-train claim, which we address below.
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No. 19-1056, Nichols v. Wayne County
post‑seizure, pre‑forfeiture hearings in front of neutral decision maker.” This allegation fails to
state a claim. When a plaintiff attempts to establish municipal liability based on a “failure to train
employees,” he must show the municipality’s “deliberate indifference to constitutional rights.”
Arrington-Bey v. City of Bedford Heights, 858 F.3d 988, 994 (6th Cir. 2017) (citing City of Canton,
489 U.S. at 388). But “a municipal policymaker cannot exhibit fault rising to the level of deliberate
indifference to a constitutional right when that right has not yet been clearly established.” Id.
(quoting Hagans v. Franklin Cty. Sheriff’s Office, 695 F.3d 505, 511 (6th Cir. 2012)).9 Nichols
has not directed us to any “Supreme Court or Sixth Circuit case that” establishes his right to the
initiation of forfeiture proceedings within 50 days of notice, or indeed within any particular time
frame. See id. at 993. He refers us only to two out-of-circuit decisions, which is alone insufficient
to “clearly establish” a constitutional right. Id.; see also Rayfield, 768 F. App’x at 512. Moreover,
one of those decisions has been vacated by the Supreme Court, Smith v. City of Chicago, 524 F.3d
834, 835 (7th Cir. 2008), vacated and remanded sub nom. Alvarez v. Smith, 558 U.S. 87 (2009),
and the other gave no specifics on timing, requiring only that “claimants be given a prompt post-
seizure retention hearing,” while leaving “the details of . . . implementation . . . to the experience
of the district court and the knowledge of the parties.” Krimstock, 306 F.3d at 68–69. Rather than
point us to any clearly established time frame within which post-seizure hearings must be initiated,
Nichols asks us to draw that line for the first time in his case. That is fatal to his failure‑to‑train
claim. Arrington-Bey, 858 F.3d at 995.
Failure to institute constitutionally prompt forfeiture proceedings. We can also readily
dispatch Nichols’ related claim that the municipalities have a custom or policy of failing to
9
Before this court, Nichols does not dispute that, to the extent his complaint alleges a
failure-to-train theory, his is the type of case to which the “clearly established” rule from
Arrington-Bey applies. See Appellant Br. at 50–51; Reply Br. at 23.
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No. 19-1056, Nichols v. Wayne County
promptly institute the forfeiture proceedings provided for under MITPA. As he now explains it,
municipalities may satisfy the Constitution either by holding a continued‑detention hearing,
separate and apart from any forfeiture proceeding, or by instituting a forfeiture proceeding quickly
enough under MITPA (within 50 days of notice). But because Nichols is not entitled to elect his
preferred procedures, he can adequately state a constitutional claim only if he alleges both that the
municipalities have a custom or policy of failing to provide a stand-alone continued‑detention
hearing and that the municipalities have a custom or policy of failing to initiate constitutionally-
timely MITPA forfeiture proceedings. Yet Nichols’ only allegation about the timing of forfeiture
proceedings is that “[i]t can take months, or even years, for the [municipalities] to initiate a case
in state court seeking forfeiture of the vehicle.” The mere assertion that it can take months or years
to initiate a forfeiture proceeding does not allege a “policy or custom” to that effect. He points
neither to an “official policy or legislative enactment,” Burgess, 735 F.3d at 478, nor to a “well
settled” “course of action deliberately chosen from among various alternatives,” Doe v. Claiborne
County, 103 F.3d 495, 507–08 (6th Cir. 1996) (quoting Monell, 436 U.S. at 691). In short, he has
failed to allege a “custom or policy” that would show that his “injury ar[ose] directly from a
municipal act.” Arrington-Bey, 858 F.3d at 994.
The most that could be said for Nichols’ complaint in this regard is that it “relies on the
absence of a policy” that would require county prosecutors to more quickly initiate forfeiture
proceedings. Id. at 995. But, as in Arrington-Bey, that is just another way of saying that the
municipalities failed to train the prosecutors to bring forfeiture hearings within the putative 50‑day
window. See id.; see also City of Canton, 489 U.S. at 386 n.5 (noting that respondent’s allegation
that “city had a ‘custom’ of denying medical care . . . appears to be little more than a restatement
of her ‘failure-to-train as policy’ claim”). “With such a claim, [Nichols] must show that the
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No. 19-1056, Nichols v. Wayne County
allegedly violated right was clearly established. And for the reasons noted earlier, [he] cannot do
so.” Arrington-Bey, 858 F.3d at 995.
***
Nichols has failed to state any claim on which relief can be granted. We therefore AFFIRM
the district court’s dismissal of Nichols’ complaint.
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No. 19-1056, Nichols v. Wayne County
McKEAGUE, Circuit Judge, concurring. I join the majority opinion in full. I write
separately because I conclude that even if there were no Monell problem here, Nichols would still
lose on the merits. Nichols asks us to apply the Mathews factors to determine whether the
municipalities were constitutionally required to provide a continued-detention hearing before the
ultimate forfeiture proceedings. Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976). [Appellant
Br. at 18–25.] The Second Circuit applied those factors in Krimstock v. Kelly and held that due
process required New York City to afford plaintiffs “a prompt post-seizure, pre-judgment hearing”
“to test the probable validity of the City’s deprivation of their vehicles pendente lite, including
probable cause for the initial warrantless seizure.” 306 F.3d 40, 67, 70 (2d Cir. 2002). On the
other side, the municipalities argue, and the district court found, that this continued-detention
hearing was not constitutionally required under the Supreme Court’s decision in United States v.
Von Neumann, 474 U.S. 242 (1986). [Lincoln Park Br. at 12–15; Wayne County Br. at 22; R. 11,
PID 135.] I think the municipalities have the better argument. Under Von Neumann, the
municipalities do not need to provide a continued-detention hearing because that hearing is not
necessary to a timely forfeiture proceeding.
To understand Von Neumann, we first need to consider the Court’s earlier opinion in United
States v. Eight Thousand Eight Hundred & Fifty Dollars ($8,850) in U.S. Currency, 461 U.S. 555
(1983). There, Customs officials at the Los Angeles airport seized $8,850 from the plaintiff, who
had declared that she was not carrying more than $5,000. Id. at 558–59. Customs informed the
plaintiff that she could file a “petition for remission or mitigation,”1 which she did a week later, in
1
Petitions for remission or mitigation are requests for executive officials to exercise their
discretion and remit or mitigate fines, penalties, or forfeitures, or to discontinue prosecution. See
19 U.S.C. § 1618. The executive official must first make a finding that the penalty or forfeiture
was “incurred without willful negligence or without any intention on the part of the petitioner to
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No. 19-1056, Nichols v. Wayne County
September 1975. Id. While her petition was still pending, the Customs agent investigated and
eventually recommended criminal proceedings against the plaintiff. Id. at 560. The case went to
trial, which ended in December 1976, when the plaintiff was convicted on one count and acquitted
on the other. Id. Then in March 1977, after an inquiry from the plaintiff’s lawyer, Customs
notified her that a forfeiture claim “had been referred to the U.S. Attorney.” Id. at 560. Finally,
two weeks later, the government filed a complaint seeking forfeiture in federal district court. Id.
The plaintiff claimed that the government’s “dilatory” processing of her petition and initiation of
the suit violated her due‑process rights. Id. at 561. The Supreme Court disagreed.
The Court explained that “[u]nlike the situation where due process requires a prior hearing,
there is no obvious bright line dictating when a post-seizure hearing must occur.” Id. at 562.
Instead, the Court analogized the forfeiture process “to a defendant’s right to a speedy trial once
an indictment or other formal process has issued.” Id. at 564. Accordingly, it applied the speedy-
trial factors from Barker v. Wingo, 407 U.S. 514 (1972), which consider, on a case-by-case basis,
the “length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice
to the defendant.” $8,850, 461 U.S. at 564.2 Applying those factors, the Court determined that,
under the circumstances present there, the “Government’s delay in instituting civil forfeiture
proceedings was reasonable.” Id. at 569.
A few years later, the Court decided the case of United States v. Von Neumann. 474 U.S.
242. Like $8,850, Von Neumann addressed the seizure of property by Customs officials. There,
as here, government authorities seized the plaintiff’s car. Von Neumann, 474 U.S. at 245. More
defraud the revenue or to violate the law” or of such “mitigating circumstances as to justify the
remission or mitigation.” Id.
2
To be clear, Nichols is not arguing that the delay in initiating forfeiture proceedings in
his case was unlawful under the framework announced in $8,850. Rather, under Nichols’ theory,
the due process problem stemmed from the lack of a continued-detention hearing.
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No. 19-1056, Nichols v. Wayne County
specifically, Von Neumann tried to bring a newly purchased car into the United States without
declaring it, and Customs seized the car. Id. Like the plaintiff in $8,850, Von Neumann filed a
petition for remission and mitigation. Id. He then posted bond for the total value of the car—
$24,500—and Customs officials released the car to him. Id. at 245–46. Thirty-six days after the
seizure, the Secretary of the Treasury notified Von Neumann that the penalty for his failure to
declare had been mitigated to $3,600. Id. at 246. Von Neumann argued that the thirty-six-day
delay violated his due process rights. Id. at 246–247.
The Supreme Court disagreed. Von Neumann argued that “his property interest in his car
g[a]ve[] him a constitutional right to a speedy disposition of his remission petition without
awaiting a forfeiture proceeding.” Id. at 249. The Court rejected this argument, explaining that
“[i]mplicit in this Court’s discussion of timeliness in $8,850 was the view that the forfeiture
proceeding, without more, provides the postseizure hearing required by due process to protect Von
Neumann’s property interest in the car.” Id. at 249 (emphasis added). It concluded by noting that
“remission proceedings are not necessary to a forfeiture determination, and therefore are not
constitutionally required. Thus there is no constitutional basis for a claim that [Von Neumann’s]
interest in the car, or in the money put up to secure the bond, entitles him to a speedy answer to
his remission petition.” Id. at 250.
Taking these cases together, here’s where the law stands. When property has been seized
without a pre-seizure hearing, the owner of the property is entitled to a post-seizure hearing.
United States v. James Daniel Good Real Prop., 510 U.S. 43, 53 (1993). The government must
timely initiate that post-seizure hearing, and timeliness is measured on a case-by-case basis via the
speedy‑trial test. $8,850, 461 U.S. at 565; Von Neumann, 474 U.S. at 251. Finally, due process’s
post-seizure requirement is satisfied by a timely “forfeiture proceeding[] without more.” Von
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No. 19-1056, Nichols v. Wayne County
Neumann, 474 U.S. at 249–51. Anything more than a timely forfeiture proceeding is “not
constitutionally required.” Id. at 250.
Nichols disagrees with this framework and argues that, at least when it comes to cars, the
Due Process Clause requires a continued-detention hearing, where a claimant can challenge the
government’s retention of the car prior to the ultimate forfeiture judgment. He relies primarily on
Krimstock. There the Second Circuit reviewed a New York City ordinance that permitted police
to seize, as “instrumentalit[ies]” of the crime, the cars of those accused of drunk driving or other
crimes. Krimstock, 306 F.3d at 43–44. The plaintiffs did not challenge either the seizures or the
forfeiture proceedings; they challenged only their inability to “promptly” challenge the “legitimacy
of and justification for the City’s retention of the vehicles prior to judgment in any civil forfeiture
proceeding.” Id. at 44. The court agreed with the plaintiffs, holding that the Due Process Clause
entitled vehicle owners to an additional hearing “promptly after their vehicles are seized” in which
they could “challenge the City’s continued possession of his or her vehicle during the pendency of
[forfeiture] proceedings.” Id. at 44, 70.
Krimstock, in a footnote, offered three grounds on which to distinguish Von
Neumann: (1) Von Neumann was reviewing the timeliness of a remission petition under the
customs laws, not the failure to provide a continued‑detention hearing; (2) the plaintiff in Von
Neumann could have filed a Rule 41(g) motion3 under the Federal Rules of Criminal Procedure to
challenge the seizure and retention of the vehicle; (3) Customs released Von Neumann’s car on
bond. 306 F.3d at 52 n.12. The dissent adopts this same analysis, arguing that Von Neumann’s
3
Von Neumann and Krimstock refer to Rule 41(e), but “[i]n 2002, this subsection was
redesignated Rule 41(g) without substantive change.” Brown v. United States, 692 F.3d 550, 552
(6th Cir. 2012) (quoting De Almeida v. United States, 459 F.3d 377, 380 n.2 (2d Cir. 2006)). For
clarity, I’ll refer to the rule throughout as Rule 41(g).
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No. 19-1056, Nichols v. Wayne County
interest in a timely remission petition is different from Nichols’ interest in using his car before the
ultimate forfeiture action. Nichols attempts to distinguish Von Neumann on these same grounds
and additionally argues that the Supreme Court’s statement that forfeiture proceedings alone
satisfy due process is dictum. [Appellant Br. at 38–43.]
These arguments are not sufficient to distinguish Von Neumann. Start with the contention
that Von Neumann does not control because it was reviewing only the timeliness of remission
petitions. Although this was the context in which the case arose, the Court in no way limited its
language to that particular context. Instead, it said “forfeiture proceedings, without more,” satisfy
due process’s post‑seizure‑hearing requirement. Von Neumann, 474 U.S. at 249.4
Nichols argues that the statement above was merely dictum. I disagree. The Court began
by framing the plaintiff’s argument as asserting a “constitutional right to a speedy disposition of
his remission petition without awaiting a forfeiture proceeding.” Id. (emphasis added). The Court
then stated that it disagreed and began its analysis with the proposition that the forfeiture hearing,
by itself, satisfies due process. Id. From that premise, it reasoned that because “remission
proceedings are not necessary to a forfeiture determination” they are “not constitutionally
required.” Id. at 250 (emphasis in original). The Court then concluded: “Thus there is no
constitutional basis for a claim that [Von Neumann’s] interest in the car, or in the money put up to
secure the bond, entitles him to a speedy answer to his remission petition.” Id. (emphasis added).
Because the Court’s holding—the thirty-six-day delay in the remission proceedings did not violate
due process—was derived from the premise that due process requires nothing more than a timely
4
The dissent makes much of how the Court said the forfeiture proceeding was all that was
required “to protect Von Neumann’s property interest in the car.” Von Neumann, 474 U.S. at 249.
I do not see how this phrase renders Von Neumann’s property interest in the car fundamentally
different, as a matter of due process, from Nichols’ property interest in his car.
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No. 19-1056, Nichols v. Wayne County
forfeiture proceeding, the premise was essential to the Court’s holding and gives us the rule of
decision. See Wright v. Spaulding, 939 F.3d 695, 701 (6th Cir. 2019) (noting that a legal
conclusion that is “necessary” or “contribute[s] to the judgment” is part of an opinion’s holding).5
Nichols next tries to distinguish Von Neumann based on the availability of Federal Rule of
Criminal Procedure 41(g). The dissent also finds Rule 41(g) relevant in arguing that Von Neumann
is distinguishable. That rule permits a person “aggrieved by an unlawful . . . seizure of property
or by the deprivation of property” to “move for the property’s return.” Fed. R. Crim. P. 41(g).
Krimstock likewise made this distinction, noting that the plaintiffs in that case had no alternative
mechanism for challenging the initial seizure or continued detention of their vehicles, whereas
Rule 41(g) provided the plaintiff in Von Neumann with such a mechanism. 306 F.3d at 52 n.12,
58–60. But Von Neumann’s reasoning does not turn on the availability of Rule 41(g). A Rule
41(g) motion is not necessary to a forfeiture determination and so it is not constitutionally required
under Von Neumann. See 474 U.S. at 250. Unsurprisingly then, Von Neumann makes no mention
of Rule 41(g) anywhere in its constitutional analysis. See id. at 249–51. Instead, its sole reference
to the Rule comes in a footnote in its discussion of the background of the case. Id. at 244 n.3. That
footnote, relying on $8,850, notes only that “[t]he claimant may trigger the Government’s initiation
of forfeiture proceedings.” Id.
For its part, $8,850 considers Rule 41(g) in its discussion of the third Barker factor—the
defendant’s assertion of the right to a judicial hearing. 461 U.S. at 568–69. Because in that case
the claimant had not filed a Rule 41(g) motion or taken advantage of other means of asserting her
5
Even if this conclusion were dictum, I would still adhere to it. “[L]ower courts are
obligated to follow Supreme Court dicta, particularly where there is not substantial reason for
disregarding it, such as age or subsequent statements undermining its rationale.” Holt v. City of
Battle Creek, 925 F.3d 905, 910 (6th Cir. 2019) (quoting In re Baker, 791 F.3d 677, 682 (6th Cir.
2015)).
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No. 19-1056, Nichols v. Wayne County
right to a forfeiture hearing, the Court concluded that there was good reason to believe that she
“did not desire an early judicial hearing.” Id. at 569. Thus, in considering the timeliness of a
forfeiture proceeding using the factors set forth in $8,850 and Von Neumann, a claimant in a state
without a Rule 41(g) analogue obviously could not be faulted for not asserting her rights in that
fashion. But nothing in either $8,850 or Von Neumann suggested that the absence of a Rule 41(g)-
type procedure would compel the state to provide an entirely separate hearing.
Finally, Nichols, again echoing Krimstock, argues that Von Neumann is distinguishable
because there, while he was waiting for Customs to begin the remission proceedings, the claimant
still had access to his car, after he’d posted a bond equal to the car’s full value. See Von Neumann,
474 U.S. at 245–46. The dissent also finds this factor persuasive. For several reasons, I do not
think this is enough to distinguish the case.
First, the Supreme Court barely even mentioned this fact. After discussing the return of
Von Neumann’s car in the facts section, the Court never explicitly returned to it in its analysis.
See Von Neumann, 474 U.S. at 245–46. If the release of the car was crucial to the holding, you’d
think the Court would have discussed it more.
Second, the statutory mechanism by which the car was released in Von Neumann was
wholly discretionary. Under 19 U.S.C. § 1614, “the appropriate customs officer may” release a
seized vehicle to “any person claiming an interest in” and willing to “pay the value of such”
vehicle, “subject to the approval of the Secretary of the Treasury.” Customs chose to exercise its
discretion to release Von Neumann’s vehicle, but it was not required to. What is more, the Court
had the discretionary statutory release scheme before it and it did not condition the satisfaction of
Von Neumann’s due process rights on the government’s use of that discretion. Instead, it held that
only those procedures that were “necessary to a forfeiture determination” were “constitutionally
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No. 19-1056, Nichols v. Wayne County
required.” Id. at 250. And the release of Von Neumann’s car was not necessary to the forfeiture
determination. Had the government chosen not to release the car, in my view, the result in Von
Neumann would not have changed.
Third, even putting these first two points aside, I am not convinced that the government’s
retaining of the full cash value of Von Neumann’s car—rather than the car itself—distinguishes
the case. On this question, Nichols argues that we should give greater protections to property
interests in cars than to those in money. [OA Audio at 3:00–6:10.] However, somebody else made
this same basic argument: Von Neumann himself. Like Nichols, Von Neumann argued that “the
importance of automobiles to citizens in this society,” merited greater due process protection. Von
Neumann, 474 U.S. at 250–51. But the Supreme Court rejected that argument, stating, “we have
already noted that . . . a forfeiture proceeding meeting the Barker test,”—that is, one that is
constitutionally prompt—“satisfies any due process right with respect to the car and the money.”
Id. at 251 (emphasis added). Thus, the municipalities’ retention of Nichols’ car does not change
the due-process analysis; Nichols is not constitutionally entitled to any hearing beyond a timely
forfeiture hearing. And so, Nichols still cannot escape the conclusion that Von Neumann is
indistinguishable.
Nichols’ remaining arguments also fail. He relies on two additional circuit precedents:
Smith v. Chicago, 524 F.3d 834 (7th Cir. 2008), vacated by Alvarez v. Smith, 558 U.S. 87 (2009),
and Ross v. Duggan, 402 F.3d 575 (6th Cir. 2004). But Smith is no help because “[a]ll in all, [it]
agree[s] with Krimstock”; it even adopts Krimstock’s analysis distinguishing Von Neumann.
Smith, 524 F.3d at 837–38. I disagree with Smith for the same reasons I disagreed with Krimstock.
Ross does not help either. That case was also about seized cars, and the plaintiffs had the
opportunity for a post-seizure “show-cause” hearing to contest both the temporary seizure and
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No. 19-1056, Nichols v. Wayne County
permanent forfeiture. 402 F.3d at 578, 583. The Ross plaintiffs argued that these procedures were
constitutionally deficient, because of, among other things, the costs of going without the car while
waiting for the show-cause hearing. Id. at 586. We disagreed and held that a property owner’s
due process rights are not violated “as long as the owners received reasonable notice and a fair
post-impoundment-but-pre-forfeiture opportunity to contest ultimate forfeiture.” Id. at 586
(emphasis added). Indeed, Ross cites Von Neumann for that proposition: In the absence of a pre-
seizure hearing, “a timely post-seizure opportunity to be heard prior to forfeiture” satisfies due
process. Id. at 584 (citing Von Neumann, 474 U.S. at 249–50). The court’s reliance on Von
Neumann reinforces how one post-seizure opportunity to contest the ultimate forfeiture is what
suffices for due process. Ross thus does not establish a right to a second post-seizure, pre-forfeiture
hearing.
Applying Von Neumann, I conclude that the Due Process Clause guarantees only a timely
forfeiture hearing, that timeliness being measured, as the Supreme Court has held, by the factors
announced in Barker v. Wingo. Because Nichols is not constitutionally entitled to an additional
continued‑detention hearing—between the seizure and the forfeiture hearing—there was no due
process right for the municipalities to violate.
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No. 19-1056, Nichols v. Wayne County
KAREN NELSON MOORE, Circuit Judge, dissenting in part. There are many things the
majority does not deny about Stephen Nichols’s case. It does not deny that he was wrongfully
deprived of the use of his car for three years. It does not deny that he had a due-process interest
in the use—not just the ownership—of his vehicle. It does not deny that he has plausibly alleged
that the municipal defendants failed to afford him any opportunity to seek temporary repossession
of his car. It does not deny that these defendants had the discretion to do so under the relevant
statutory scheme. Nor does it deny that our caselaw forecloses qualified immunity as a defense
for municipal defendants when the injury for which they are allegedly liable was caused by
municipal act itself. Yet it denies Nichols recourse because Nichols’s lawyer stated at oral
argument that there were multiple ways for the government to go about affording his client due
process. Even if I were inclined to decide serious constitutional cases based on “gotcha” moments
at oral argument, this would not be one of them. Nichols did not concede a flaw in his claim—to
the contrary, he confirmed just how modest a due-process right he seeks. In my view, Nichols has
adequately stated a constitutional claim, and we should allow this case to proceed.
As the district court noted, “[i]t is undisputed that Defendants do not routinely provide
post-deprivation, pre-forfeiture hearings for civil seizures.” Nichols v. County of Wayne, No. 18-
12026, 2018 WL 6505360, at *2 (E.D. Mich. Dec. 11, 2018). Nichols claims that this failure to
provide an opportunity for claimants to regain possession of their property is unconstitutional. The
defendants respond that Nichols has sued the wrong entities, because the MITPA, for which they
are not responsible, requires them to retain all seized vehicles, without exception. The majority
does not reach the merits of Nichols’s claim that the defendants’ policy is unconstitutional, nor
does it address the defendants’ argument about state law tying their hands. Instead, it first suggests
in dicta that (1) Nichols might be precluded from making a municipal-liability claim when there
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No. 19-1056, Nichols v. Wayne County
has been no finding of individual-defendant liability, and that (2) Nichols might have failed to
allege that the defendants caused him damages. It then holds that Nichols’s claim fails because he
has not alleged that the municipal defendants have a policy of failing to institute timely forfeiture
proceedings. Below, I explain why each of these propositions is incorrect.
First, the majority states that “[i]t is an open question in this circuit ‘whether a
municipality’s liability under § 1983 is predicated on first finding that an individual officer or
employee is also liable.’” Maj. Op. at 5 n.4 (quoting Rayfield v. City of Grand Rapids, 768 F.
App’x 495, 511 n.12 (6th Cir. 2019)). The majority’s statement is erroneous, but it is true that
several opinions issued after the first published one resolving this question have muddied the
waters. Originally, we stated that “it is possible that city officials may be entitled to qualified
immunity for certain actions while the municipality may nevertheless be held liable for the same
actions.” Barber v. City of Salem, 953 F.2d 232, 238 (6th Cir. 1992); see also Garner v. Memphis
Police Dep’t, 8 F.3d 358, 365 (6th Cir. 1993) (“Under the law of this circuit, a municipality may
not escape liability for a § 1983 violation merely because the officer who committed the violation
is entitled to qualified immunity.”). This scenario could arise if a municipal employee, acting
pursuant to a municipal policy or custom, committed a constitutional violation, but escaped
personal liability because the plaintiff’s constitutional right was not clearly established at the time
of the violation.
But in Winkler v. Madison County, 893 F.3d 877 (6th Cir. 2018), the panel mistakenly said
that our decision in Watkins v. City of Battle Creek, 273 F.3d 682 (6th Cir. 2001), “broadly state[d]
that the imposition of municipal liability is contingent on a finding of individual liability under
§ 1983.” 893 F.3d at 900. Yet Watkins does not say this. It says only that “[i]f no constitutional
violation by the individual defendants is established, the municipal defendants cannot be held
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No. 19-1056, Nichols v. Wayne County
liable under § 1983.” 273 F.3d at 687 (emphasis added). Winkler’s gloss on Watkins was plainly
incompatible with our prior, published holdings—that the precondition for municipal liability is
the presence of a constitutional violation, not a finding of individual liability. On this specific
issue regarding municipal liability, there was no confusion until Winkler introduced it. Thus, citing
to Winkler, we uttered the line that the majority now quotes: “It is undecided whether a
municipality’s liability under § 1983 is predicated on first finding that an individual officer or
employee is also liable.” Rayfield, 768 F. App’x at 511 n.12. It should be clear, by now, that this
statement was in error. There is no “open question in this circuit,” Maj. Op. at 5 n.4, about whether
a plaintiff must first show individual liability in order to show municipal liability. Our controlling
precedent says that there is no such requirement.1 See 6 Cir. R. 32.1(b).
Beyond the qualified-immunity escape hatch, there are still other instances in which a lack
of individual liability will not foreclose a municipal-liability claim. As Judge Cole’s thoughtful
concurrence in Epps v. Lauderdale County, 45 F. App’x 332 (6th Cir. 2002), lays out, there are
numerous ways in which municipalities themselves may be held responsible for constitutional
violations, including when “a government actor in good faith follows a faulty municipal policy,”
when “municipal liability is based on the actions of individual government actors other than those
who are named as parties,” and when “no one individual government actor . . . violate[s] a victim’s
constitutional rights,” but the combined acts of a group of actors cause such a violation. Id. at
334–35 (citing cases); see North v. Cuyahoga County, 754 F. App’x 380, 390 (6th Cir. 2018) (“In
a subset of § 1983 cases . . . the fact that no individual defendant committed a constitutional
violation—e.g., acted with deliberate indifference to an inmate’s serious medical need—might not
1
I note that the defendants make no argument to the contrary. It is the majority—not the
defendants—that floats this unsupported, alternative barrier to relief.
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No. 19-1056, Nichols v. Wayne County
necessarily ‘require a finding that no constitutional harm has been inflicted upon the victim, nor
that the municipality is not responsible for that constitutional harm.’”) (quoting Epps, 45 F. App’x
at 334 (Cole, J., concurring)). Again, the defendants do not argue otherwise.
Next, the majority suggests in a footnote that there may have been a “missing allegation”
in Nichols’s complaint as to whether the municipality actually caused him damages. Maj. Op. at
6 n.5. But the plain language of the complaint proves the majority wrong: “Nichols has been and
continues to be damaged by the Defendants’ failure to provide a prompt post-deprivation hearing
because he has been unnecessarily deprived of the use of his vehicle, the opportunity to perform
necessary maintenance on it, expended money on insurance for a vehicle that he can’t use, and has
been forced to pay for rides, use taxis and inconvenient public transit to get to and from work and
perform daily necessities of life.” R. 1 (Compl. ¶ 26) (Page ID #6–7). The majority faults Nichols
for not “alleg[ing] that he would have prevailed at an intervening hearing if it had been offered,”
Maj. Op. at 6 n.5, but ignores that he specifically alleges that continued deprivation of his vehicle
imposes an immense hardship on him, R. 1 (Compl. ¶ 26) (Page ID #6–7). I take this as an
allegation that a retention hearing, focusing on hardship, would come out in his favor. Even if the
majority were correct that Nichols failed to lay out causation for purposes of calculating
compensatory damages, he need not make this showing for nominal damages. See Carey v.
Piphus, 435 U.S. 247, 266 (1978) (“[T]he denial of procedural due process should be actionable
for nominal damages without proof of actual injury.”). There is thus no deficiency in Nichols’s
complaint with respect to alleging that the municipal defendants caused him damages. And
regardless, the defendants have forfeited any argument to this effect. Once again, the majority
improperly raises—but does not resolve—an argument that no defendant has made in this case.
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No. 19-1056, Nichols v. Wayne County
The majority then sets up its holding by pointing to Nichols’s lawyer’s statement at oral
argument that either a prompt retention hearing or a quickly initiated forfeiture proceeding would
comply with the Constitution. See Maj. Op. at 12. According to the majority, “because Nichols
is not entitled to elect his preferred procedures, he can adequately state a constitutional claim only
if he alleges both that the municipalities have a custom or policy of failing to provide a stand-alone
continued-detention hearing and that the municipalities have a custom or policy of failing to
initiate constitutionally-timely MITPA forfeiture proceedings.” Id. Nichols’s complaint lacks
sufficient allegations regarding the defendants’ failure to institute timely forfeiture proceedings,
says the majority, so his claim fails. See id. (“The mere assertion that it can take months or years
to initiate a forfeiture proceeding does not allege a ‘policy or custom’ to that effect.”).
This misreads Nichols’s complaint and misunderstands the nature of liability under Monell
v. Department of Social Services of City of New York, 436 U.S. 658 (1978). First, the majority
omits the following allegation from Nichols’s complaint: “On information and belief, Defendants
notice for forfeiture hundreds of vehicles every year, hold them without process, and fail, in each
case, to provide prompt post-seizure, pre-forfeiture hearing in front of a neutral decision-maker.”
R. 1 (Compl. ¶ 43) (Page ID #10). Combined with Nichols’s allegation that “[i]t can take months,
or even years, for the Defendants to initiate a case in state court seeking forfeiture of the vehicle,”
id. ¶ 4 (Page ID #2), this constitutes a plausible allegation that the municipal defendants are not
regularly initiating forfeiture proceedings in a timely fashion. If the municipal defendants
regularly initiated forfeiture proceedings within, for example, one week of the expiration of the
twenty-day period described in § 445.79b(1)(c) of the MITPA, there would be no basis for Nichols
alleging a failure to provide “prompt” retention hearings—prompt forfeiture proceedings would
obviate the need for them. To read the complaint more narrowly is to ignore the thrust of Nichols’s
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No. 19-1056, Nichols v. Wayne County
claim in this case: The municipal defendants, as a policy or custom, are allowing too much time
to pass without giving claimants a chance to repossess their property.
Moreover, Nichols is not required under Monell to make allegations regarding the
frequency with which the municipal defendants take months or years to initiate forfeiture
proceedings. One of the ways a plaintiff can demonstrate an “illegal policy or custom” under
Monell is by showing “the existence of a custom of tolerance or acquiescence of federal rights
violations.” Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013). Even if the defendants delayed
initiating forfeiture proceedings on a minority of occasions, per Nichols’s complaint they would
still have a custom of permitting constitutional violations on each of these occasions by not
providing retention hearings. Put another way, it is sufficient for Nichols to allege that in situations
in which forfeiture proceedings are delayed, the municipal defendants routinely violate property
owners’ constitutional rights by not providing retention hearings.
Relatedly, the majority suggests that Nichols’s articulations of the municipal defendants’
policy and how he wants it fixed are too vague to make out a constitutional claim. Specifically,
the majority states that “[w]e do not know the outer boundaries of Nichols’ position, as the court
redirected its line of questioning, once learning that, at a minimum, Nichols viewed a forfeiture
proceeding filed 50 days after notice as satisfying due process.” Maj. Op. at 9 n.7. This is false:
Thirty days is the outer boundary that Nichols’s counsel readily supplied upon questioning at oral
argument. The following colloquy transpired:
Judge: If a forfeiture hearing is held without exception seven days
after the person evidences objection to the forfeiture, is
there a bail hearing necessary?
Counsel for Nichols: No.
Judge: If it’s held a year later, is a bail hearing necessary in the
middle?
Counsel for Nichols: Yes.
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No. 19-1056, Nichols v. Wayne County
Judge: OK. At what point do we draw that line?
Counsel for Nichols: I would submit that the history of due process . . . points to
something like 30 days, at a minimum.
OA Audio at 11:00–11:29. Note that Nichols’s counsel did not say, “A hearing after 30 days
would provide due process but I couldn’t tell you where exactly to draw the line.” In fact, he took
an unambiguously clear position: The constitutional minimum required—or in other words, the
temporal boundary that the government may not exceed—is 30 days. This is “the outer boundar[y]
of Nichols’ position.” Maj. Op. at 9 n.7. When the majority says that Nichols has not told us “how
quick would be quick enough,” id. at 9, it simply ignores his precise answer to this question. Per
Nichols, 30 days would be quick enough, as would be 29 days, 28 days, 27 days, or any lesser
amount of time. And conversely, per Nichols, 31 days would not be quick enough, nor would 32
days, 33 days, 34 days, or any greater amount of time. How could Nichols have been any clearer?
I am unpersuaded by the majority’s efforts to unearth flaws in Nichols’s well-pleaded complaint.
Instead, I believe Nichols has plausibly alleged the existence of a policy or custom not to
provide an opportunity for seized-vehicle owners to repossess their vehicles while forfeiture
proceedings are pending. Accordingly, I would proceed to an analysis of whether Nichols has
alleged the existence of a policy or custom that violates the Constitution. But because the majority
does not reach the constitutional question, I will keep my observations about this question brief.
The threshold issue is whether precedent from the Supreme Court or this court forecloses
the due-process inquiry. The City2 argues that the Supreme Court’s decisions in United States v.
Eight Thousand Eight Hundred & Fifty Dollars ($8,850) in U.S. Currency, 461 U.S. 555 (1983),
and United States v. Von Neumann, 474 U.S. 242 (1986), “confirm[ed] that the due process right
2
The Defendant County, like the majority, “does not take a position on the ultimate
constitutional question.” Appellee County Br. at 5.
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No. 19-1056, Nichols v. Wayne County
to a meaningful post-seizure hearing requires only a forfeiture proceeding.” Appellee City Br. at
15. But neither of these cases determined whether the government is required to provide the
purported owners of seized property with a prompt opportunity to demonstrate that their property
need not be retained pending resolution of forfeiture proceedings. In $8,850, the Supreme Court
held that the government’s eighteen-month delay in initiating a forfeiture proceeding over seized
currency did not violate a claimant’s right to due process of law. 461 U.S. at 569. The question
of retaining versus releasing seized property, pending the resolution of the forfeiture action, was
not at issue. The petitioner “challenge[d] only the length of time between the seizure and the
initiation of the forfeiture trial.” Id. at 564. Because the issue was limited to the timing of this
proceeding, and whether it was unconstitutionally delayed, the Court applied the speedy-trial test
from Barker v. Wingo, 407 U.S. 514 (1972), to determine that a delay in commencing the forfeiture
proceedings was justified. 461 U.S. at 564. By contrast, Nichols’s claim “does not concern the
speed with which civil forfeiture proceedings themselves are instituted or conducted.” Krimstock
v. Kelly, 306 F.3d 40, 68 (2d Cir. 2002) (Sotomayor, J.), cert. denied, 539 U.S. 969 (2003).
Von Neumann is similarly distinguishable. The claimant in that case challenged only “a
36-day delay by the United States Customs Service in responding to a remission petition,” not the
continued deprivation of his property while his forfeiture case was pending. 474 U.S. at 243.
Indeed, two weeks after the claimant’s car was seized, he posted a $24,500 bond for the car and
reestablished possession of it, but still filed suit to challenge the length of time it took the
government to decide whether to institute forfeiture proceedings at all. Id. at 245–46. Whereas
Von Neumann sought timely adjudication of a remission petition to terminate a forfeiture
proceeding, Nichols sought the use of his car while it was undetermined whether he would
ultimately have to forfeit it. Von Neumann did not seek due-process protection for any such
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No. 19-1056, Nichols v. Wayne County
interest in the use of the vehicle; he had enjoyed the use of his car since he posted bond and the
car was released to him. See id. at 245. Thus, Von Neumann does not resolve the issue before us
because retention of a seized vehicle implicates a unique property interest, and thus triggers unique
due-process protections.3 See Krimstock, 306 F.3d at 53 (“[I]t a non sequitur to hold . . . that
because postponing the commencement of a forfeiture action pending the underlying criminal
proceeding may not offend due process, retention of the seized vehicle without a hearing
throughout that same period, or longer, is constitutionally permissible.”). Furthermore, Nichols’s
predicament is distinguished from Von Neumann’s in that the MITPA bars “action[s] to recover
personal property.” Mich. Comp. Laws § 445.79b(2). By contrast, Von Neumann had the ability
to file a motion under Federal Rule of Criminal Procedure 41(g) for return of the seized property
during the forfeiture litigation.4
3
The fact that Nichols acknowledged at oral argument that prompt commencement of
forfeiture proceedings could satisfy his due-process concern does not turn this into a redux of the
Von Neumann case. Nichols does not demand more speedy initiations of the proceedings that
ultimately determine whether owners have to forfeit ownership of their property, but rather more
speedy determinations of whether they can use their property while ownership determinations are
pending. His “concession,” Maj. Op. at 9, at oral argument is consistent with this theory: Whether
through a prompt forfeiture hearing or a prompt retention hearing, due process requires that an
owner be permitted to challenge the continued dispossession of her or his personal property.
4
The City argues that Von Neumann’s ability to file a Rule 41(g) motion is not relevant to
the due-process analysis, because the option to file such a motion under the Federal Rules of
Criminal Procedure was lost once forfeiture proceedings were initiated, and resolving such a
motion could itself be subject to substantial delay. Neither of these attempts to minimize the
import of a Rule 41(g) motion is persuasive. The first argument overlooks a primary reason a
claimant might pursue relief through a Rule 41(g) motion—delay in the initiation of forfeiture
proceedings. The second argument suggests that seeking judicial review of seized property is of
little value, because such review could be delayed. Possible judicial delay notwithstanding, a Rule
41(g) motion to return property is an important tool for claimants. As the Advisory Committee
has explained, the Rule “provides that . . . a person whose property has been lawfully seized may
seek return of property when aggrieved by the government’s continued possession of it.” Fed. R.
Crim. P. 41(g), Advisory Committee Notes (1989 Amendment) (emphasis added).
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Judge McKeague’s concurring opinion ignores the distinction between different types of
due-process interests. This is clearest in the opinion’s selective quotation of the “forfeiture
proceedings, without more” phrase from Von Neumann. See Concurring Op. at 18 (“[The Supreme
Court] said ‘forfeiture proceedings, without more,’ satisfy due process’s post-seizure-hearing
requirement. Von Neumann, 474 U.S. at 249.”). The Supreme Court’s full statement was as
follows: “Implicit in this Court’s discussion of timeliness in $8,850 was the view that the forfeiture
proceeding, without more, provides the postseizure hearing required by due process to protect Von
Neumann’s property interest in the car.” 474 U.S. at 249 (emphasis added). The concurring
opinion reads the emphasized words out of the Supreme Court’s opinion. The Court properly
limited its due-process analysis to the precise due-process interest at stake, something the
concurring opinion wishes not to do. Relatedly, the concurring opinion takes out of context Von
Neumann’s statement that “a forfeiture proceeding meeting the Barker test satisfies any due
process right with respect to the car and the money.” 474 U.S. at 251. This statement appeared as
the Court entertained, briefly, whether the remission procedure “itself creates a property right
which cannot be taken away without due process that includes a speedy answer to a remission
petition.” Id. at 250 (emphasis added). Thus, even when reasoning hypothetically, the Court
addressed due-process rights that were linked to “timely disposition” of a remission petition—not
to temporary repossession of a vehicle. Id.
The concurring opinion also states that “[i]f the release of the car was crucial to the [Von
Neumann] holding, you’d think the Court would have discussed it more.” Concurring Op. at 20.
But why would we expect exposition from the Supreme Court on due-process protections for a
property interest that had nothing to do with the case that the Court was deciding? Similarly, the
fact that the property-release procedure in the case (19 U.S.C. § 1614) was “wholly discretionary,”
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Concurring Op. at 20, was irrelevant to the case—it did not alter the nature of Von Neumann’s
property interest. The concurring opinion speculates that, “in [its] view,” the holding of Von
Neumann “would not have changed” if the facts had been critically different. Id. at 21. I fail to
see the relevance of such conjecture, which represents “a counterfactual hypothetical [that the
Court] [wa]s powerless . . . to decide.” Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246,
2295 (2020) (Sotomayor, J., dissenting). Whether Von Neumann repossessed his car as a matter
of government rule or discretion, the point is that his lawsuit had to do with timely disposition of
a federal remission petition, not conditional repossession of a seized vehicle.
All parties cite our decision in Ross v. Duggan, 402 F.3d 575 (6th Cir. 2004), for support,
but that case did not address the issue before us. In Ross, we addressed a constitutional challenge
to the City of Detroit’s enforcement of Michigan’s nuisance-abatement statute, which resulted in
the seizure and impoundment of the plaintiffs’ vehicles. See generally Mich. Comp. Laws
§ 600.3801 et seq. As relevant here, the plaintiffs argued that insufficient postimpoundment
procedures denied them due process. We found this cause of action “facially deficient” due to the
presence of probable cause justifying the initial seizures, “as long as the owners received
reasonable notice and a fair post-impoundment-but-pre-forfeiture opportunity to contest ultimate
forfeiture.” Ross, 402 F.3d at 586. Unlike in this case, however, “the plaintiffs were each afforded
an opportunity to request a prompt post-impoundment ‘show-cause’ hearing to challenge both the
temporary seizure and the threatened permanent forfeiture,” which, if successful, “would result in
the immediate restoration” of their vehicles. Id. at 583. Nichols was not afforded such an
opportunity. In Ross, we did not consider whether procedural due process would be lacking if the
City of Detroit had detained the plaintiffs’ vehicles indefinitely without a preforfeiture, show-cause
hearing, because the plaintiffs conceded that “each of them had received notice and an opportunity
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No. 19-1056, Nichols v. Wayne County
to contest the threatened nuisance-abatement forfeitures of their motor vehicles at a ‘show-cause’
hearing.” Id. at 586.
Without any precedent resolving the issue before us, I would follow the Second Circuit’s
unanimous opinion in Krimstock v. Kelly—the only published, appellate opinion on point5—in
concluding that the failure to provide some sort of retention hearing for purported owners of seized
property violates the Constitution. In Krimstock, then-Judge Sotomayor wrote for a unanimous
panel that New York City’s vehicle-forfeiture scheme, which allowed the city to “seize a motor
vehicle following an arrest for the state-law charge of driving while intoxicated (‘DWI’) or any
other crime for which the vehicle could serve as an instrumentality” without any sort of subsequent
retention hearing, violated the Fourteenth Amendment, inter alia. 306 F.3d at 44. Under the
balancing test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), the court reasoned that the
private interest in the ownership and use of a vehicle was significant, the risk of erroneous
deprivation was “reduced” given the “context of DWI owner-arrestees,” and the government’s
interest was low, given alternative methods—such as the posting of bond in exchange for a seized
vehicle—in preventing an owner from absconding with this property. Krimstock, 306 F.3d at 64.
“Balancing the Mathews factors,” the Second Circuit concluded that due process of law required
a hearing in which a claimant could demonstrate that “means short of retention of the vehicle can
satisfy the City’s need to preserve it from destruction or sale during the pendency of proceedings.”
Id. at 67.
If anything, the Mathews factors support Nichols’s claim even more than they supported
the plaintiffs’ claim in Krimstock. First, as to the weight of the private interest, “the length or
5
The Seventh Circuit issued a similar opinion, but the Supreme Court vacated it as moot.
See Smith v. City of Chicago, 524 F.3d 834 (7th Cir. 2008), vacated as moot sub nom. Alvarez v.
Smith, 558 U.S. 87 (2009).
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finality of the deprivation,” Logan v. Zimmerman Brush Co., 455 U.S. 422, 434 (1982), is greater
here than in Krimstock. Under New York City law, then-Judge Sotomayor noted, the City was
required to bring a forfeiture action “twenty-five days after a claim is made for the vehicle.”
Krimstock, 306 F.3d at 54 (citing 38-A R.C.N.Y. § 12–36(a)). Under the MITPA, by contrast, the
only temporal requirement is that the prosecuting attorney must bring a forfeiture action
“promptly” after receiving the property claim and bond. Mich. Comp. Laws § 445.79b(1)(c).
There is no specific deadline, even when the property owner has demanded that her property be
returned. Cf. Krimstock, 306 F.3d at 54 (leaving the timing of initiating a forfeiture action up to
the “discretion” of the New York City Property Clerk only when “no demand is made” by the
owner of the property). The private interest is thus even weightier here than in Krimstock.6
Second, the risk of erroneous deprivation is more significant here. In Krimstock, the
Second Circuit noted the low risk of erroneous deprivation in the case of DWI arrestees whose
cars were seized “because a trained police officer’s assessment of the owner-driver’s state of
intoxication can typically be expected to be accurate.” 306 F.3d at 62–63. Similarly, in People v.
One 1998 GMC, 960 N.E.2d 1071 (Ill. 2011), cert. denied, 556 U.S. 1034 (2012), the Illinois
6
Language from our decision in United States v. Kingsley, 241 F.3d 828 (6th Cir.), cert.
denied, 534 U.S. 859 (2001), regarding the privilege of operating a motor vehicle is not to the
contrary. In Kingsley, we reviewed a district court’s ban on a defendant’s probationary operation
of motorized vehicles. Id. at 838. In response to the defendant’s argument that such a ban unduly
deprived him of personal liberty, we observed that “operating a motor vehicle on the public
thoroughfares, under any circumstances, is not a fundamental personal right, but instead is a mere
societally-bestowed privilege, granted by the grace of the state, which an adult citizen must earn,
and which the government can restrict or invalidate, even administratively, in the rational
furtherance of a legitimate public purpose.” Id. Apart from the narrower question of an
individual’s “right” to operate a vehicle on public thoroughfares, however, we have stated clearly
that an individual may have a substantial “interest” in both owning and utilizing a vehicle. Henry,
655 F. App’x at 462. Nichols has not alleged that the temporary seizure of his vehicle infringed
on his substantive rights; he merely argues that given the significant weight of his interest in this
vehicle, he is due a commensurate level of process before the vehicle may be retained by the
government.
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Supreme Court emphasized that it was unlikely that a police officer would be mistaken about
probable cause “especially for crimes such as the DUI and DWLR offenses involved here.” Id. at
1087. Probable-cause determinations under the MITPA, by contrast, are more complex. Unlike
assessing a driver’s blood-alcohol content, the determination of whether a person, “[w]ith intent
to defraud or violate the law,” has unlawfully used another person’s identifying information is less
immediately verifiable. Mich. Comp. Laws § 445.65(1)(a). The statute itself recognizes the
numerous circumstances that may not qualify as fraud under the MITPA, for instance when the
accused uses the identifying information of a person with their consent (unless the person giving
consent knows that the information will be used to commit an unlawful act), when the accused had
been acting in otherwise lawful enforcement of a person’s legal rights, or when the accused had
given “a bona fide gift” to a person in exchange for use of their identifying information. Id.
§ 445.65(2)(a), (b), (d). To be clear, these circumstances are listed as defenses in the statute, id.
§ 445.65(2), and the validity of probable cause is not dependent on the viability of a defense, see
Fridley v. Horrighs, 291 F.3d 867, 873 (6th Cir. 2002); moreover, an officer’s judgment that
probable cause exists should be accorded “due weight,” Ornelas v. United States, 517 U.S. 690,
699 (1996). Still, determining at a traffic stop whether a driver knowingly used another person’s
identifying information is more complex than determining whether the driver was “operating while
intoxicated.” Mich. Comp. Laws § 257.625(1). The risk of an erroneous deprivation of property
here is thus higher than the “reduced” risk in Krimstock. 306 F.3d at 62.
On balance, here the private interest is substantial, the erroneous risk of deprivation is
moderate, there is considerable value in additional safeguards, and the government’s interest is
low. Accordingly, the Mathews balancing test tips in Nichols’s favor. For these reasons, I would
follow the Second Circuit in holding that vehicle owners must be afforded a prompt, postseizure
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No. 19-1056, Nichols v. Wayne County
hearing before a neutral decisionmaker to determine whether “means short of retention of the
vehicle can satisfy the [government’s] need to preserve it from destruction or sale during the
pendency of proceedings.” Krimstock, 306 F.3d at 67.
The majority suggests that, alternatively, Nichols’s claim is barred for failure to allege the
violation of a clearly established right. But this clearly-established-right defense does not apply
“[w]hen an injury arises directly from a municipal act, . . . because fault and causation obviously
belong to the city.” Arrington-Bey v. City of Bedford Heights, 858 F.3d 988, 994–95 (6th Cir.
2017), cert. denied, 138 S. Ct. 738 (2018).7 “[T]here is a significant difference between a Monell
claim alleging that a municipal policy or custom caused a constitutional violation . . . and a Monell
claim alleging that a municipality’s failure to train amounted to deliberate indifference.” Brennan
v. Dawson, 752 F. App’x 276, 288 (6th Cir. 2018). When the first type of Monell claim is at issue,
as is the case here, the violated right need not be clearly established. Id. The majority argues that,
as in Arrington-Bey, the policy-based Monell claim here is actually a failure-to-train claim, so the
clearly-established-right defense applies. But we said nowhere in Arrington-Bey that claims based
on a municipality’s failure to institute a policy were per se identical to claims based on
municipality’s failure to train their employees. All we said in that case was that a plaintiff relying
on a deliberate-indifference theory of municipal liability had to do more than show the lack of a
policy. See Arrington-Bey, 858 F.3d at 995 (“In a deliberate-indifference case, the claimant must
show not only that an employee’s act caused a constitutional tort, but also that the city’s failure to
train its employees caused the employee’s violation and that the city culpably declined to train its
‘employees to handle recurring situations presenting an obvious potential for such a violation.’”)
7
By contrast, the defense does apply to Nichols’s failure-to-train allegation against Kim
Worthy, in her official capacity, and thus I agree with the majority that this claim fails. See Maj.
Op. at 10–11.
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No. 19-1056, Nichols v. Wayne County
(quoting Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 409 (1997)). This case, unlike
Arrington-Bey, is not about the actions of individual municipal employees and whether a
municipality’s deliberate indifference in training them is what led to the alleged harm. Rather,
Nichols alleges that the City and County had a policy of failing to provide retention hearings for
owners of vehicles seized pursuant to the MITPA. This claim does not involve failure-to-train
allegations, and therefore Nichols need not demonstrate that these municipal defendants violated
a clearly established right.
***
In all, the majority manages to avoid remedying a significant constitutional violation by
focusing on one line uttered by Nichols’s counsel at oral argument. This utterance was not a
concession of error, but a clarification of just how narrow the scope of this case is. Although the
majority does not resolve the constitutional question in this case, it sanctions the warrantless, three-
year deprivation of Nichols’s vehicle, despite the government’s undisputed failure to offer him
any means of challenging this prolonged deprivation. Those following trends in our court’s
jurisprudence will note that in the span of a single month, we have countenanced stripping
thousands of indigent Tennesseans of their driver’s licenses, see Robinson v. Long, 966 F.3d 521
(6th Cir. 2020) (Cole, C.J., dissenting from denial of rehearing en banc), and seizing Michiganders’
vehicles without a chance for them to demonstrate, pendente lite, the extreme hardship posed by
such seizure. Neither precedent nor prudence compels this trend. For these reasons, and the ones
stated above, I dissent.
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Stephen Nichols v. Wayne County, Mich.
Combined Opinion