                         NOT RECOMMENDED FOR PUBLICATION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




                                                -2-
No. 19-1056, Nichols v. Wayne County


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.

                                               -3-
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.
                                                 -4-
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
                                                    -5-
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.
                                                 -6-
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.



                                                -7-
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.
                                                -8-
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.
                                                 -9-
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.
                                                -10-
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.
                                                 -11-
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



                                                -12-
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.




                                                -13-
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
                                                 -14-
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.
                                                -15-
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



                                                -16-
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).
                                                 -17-
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.
                                                 -18-
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)).
                                                -19-
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



                                                -20-
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



                                               -21-
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.




                                                   -22-
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



                                                -23-
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



                                                 -24-
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.

                                                -25-
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.




                                                -26-
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



                                                 -27-
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.


                                                 -28-
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.

                                               -29-
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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No. 19-1056, Nichols v. Wayne County


       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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No. 19-1056, Nichols v. Wayne County


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).

                                               -34-
No. 19-1056, Nichols v. Wayne County


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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No. 19-1056, Nichols v. Wayne County


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.

                                                -37-
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.




                                                 -38-
