                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0483n.06

                                           No. 18-2448


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

  GERALD S. OSTIPOW Individually and as Personal )                                  FILED
  Representative of the Estate of Royetta L. Ostipow, )                       Aug 18, 2020
  Deceased,                                           )                   DEBORAH S. HUNT, Clerk
                                                      )
                                                      )
         Plaintiffs-Appellants,                       )           ON APPEAL FROM THE
                                                      )           UNITED STATES DISTRICT
  v.                                                  )           COURT FOR THE EASTERN
                                                      )           DISTRICT OF MICHIGAN
  WILLIAM L. FEDERSPIEL; SAGINAW COUNTY )
  SHERIFF’S DEPARTMENT; DEPUTY DOE 1–10, )
                                                      )
         Defendants-Appellees.                        )


BEFORE:        BATCHELDER, DONALD, and READLER, Circuit Judges.

       CHAD A. READLER, Circuit Judge.

       Officers discovered marijuana plants growing in a farmhouse owned by Gerald and Royetta

Ostipow. After seizing items believed to be connected to drug manufacturing, local officials

initiated civil asset forfeiture proceedings against those items as well as the farmhouse itself. The

Ostipows objected, claiming they were unaware their son, who lived in the farmhouse, was running

a drug operation. The Ostipows then spent the next eight years in state court asserting their right

to the seized property. Ultimately, they received a favorable final judgment. When the judgment

was not immediately satisfied, the Ostipows turned to federal court for relief.

       While we deeply sympathize with the Ostipows, their remedy continues to be in state court.

As none of their federal claims are meritorious, we AFFIRM the judgment of the district court.
Case No. 18-2448, Ostipow v. Federspiel


                                        BACKGROUND

       Gerald and Royetta purchased a farmhouse down the street from their home. To cover the

approximately $150,000 purchase price, the Ostipows used a large part of their life savings and

took out a $50,000 mortgage on their home. In re Forfeiture of a Quantity of Marijuana, No.

310106, 2013 WL 5731508, at *2 (Mich. Ct. App. Oct. 22, 2013) (“2013 Forfeiture”).

       After years of repairing and remodeling the farmhouse, the Ostipows allowed their then

36-year-old son, Steven, to move in. Steven had a history of committing minor crimes, from

breaking and entering, to bar fights, to drug possession. Id. at *4. For a time, the support of his

family seemed to help Steven alleviate those tendencies. But his path to redemption took a sharp

turn when he decided to convert the majority of the farmhouse into a large marijuana-growing

operation. In 2008, after receiving a tip that Steven was growing marijuana, Saginaw County

Sheriff’s deputies executed a warrant for the farmhouse. Officers discovered over 200 marijuana

plants and fifteen pounds of processed marijuana, as well as narcotics, drug paraphernalia, and

equipment used to grow marijuana. Officers seized these items as instrumentalities of crime. They

also seized the farmhouse property—not just the farmhouse and its contents, but also three large

sheds, which contained farm equipment, a partially restored 1965 Chevy Nova, and a snowmobile,

as well as guns found in both the farmhouse and the Ostipows’ home.

       Following Steven’s guilty plea to various drug-related crimes, the Saginaw County

Prosecutor initiated civil forfeiture proceedings against the real and personal property seized. The

Ostipows filed an answer in those proceedings in which they alleged they were innocent third-

party owners, with no knowledge of any illegal activity. Rejecting the Ostipows’ claim, the

Saginaw County Circuit Court entered an order of forfeiture directing the Sheriff’s Department to

dispose of the property as directed by Mich. Comp. Laws § 333.7524. The Ostipows appealed.



                                                 2
Case No. 18-2448, Ostipow v. Federspiel


At the same time, they moved the circuit court to stay the forfeiture order. Their motion was

granted—contingent upon the Ostipows’ posting a $150,000 bond. The Ostipows asked the

Michigan Court of Appeals to review the bond conditions, but the appellate court denied their

request. Ultimately, the Ostipows did not pay the bond. In the absence of a stay of the forfeiture

order, the Sheriff’s Department sold the Ostipows’ property.

       Two years later, the Michigan Court of Appeals determined that the Ostipows’ innocent-

owners defense raised material issues of fact and accordingly remanded the case back to the circuit

court for additional proceedings. See In re Forfeiture of a Quantity of Marijuana, 805 N.W.2d

217, 225 (Mich. Ct. App. 2011). During a subsequent bench trial, the circuit court examined

whether the property seized during the raid was subject to forfeiture and, if so, whether the

Ostipows were innocent owners of that property. Once again, the circuit court found that the

Ostipows were not innocent owners. See 2013 Forfeiture, 2013 WL 5731508, at *2. Back, then,

to the Michigan Court of Appeals, which held that Royetta, but not Gerald, was an innocent owner,

and thus remanded the case back to the circuit court for a third time. Id.

       At long last, in August 2016, the circuit court entered a final judgment describing which of

the real and personal property was not forfeited. The property deemed non-forfeited included:

(1) Royetta’s dower interest in the farmhouse, (2) the personal property in the farmhouse’s sheds,

including a 1965 Chevrolet Nova, and a collection of tools and equipment, (3) ammunition and

firearms found in the Ostipows’ home, and (4) and certain other personal property. The next day,

the Ostipows made a written demand to Saginaw County Sheriff William Federspiel to return and

reassemble the non-forfeited property within 21 days. When Federspiel failed to meet those

demands, the Ostipows filed this § 1983 action against Federspiel in his individual and official

capacities,   the Saginaw County Sheriff’s Department, and Does 1–10 alleging claims for



                                                 3
Case No. 18-2448, Ostipow v. Federspiel


(i) trover/conversion, (ii) substantive due process violations, (iii) procedural due process

violations, (iv) violation of the Takings Clause of the Fifth Amendment, (v) excessive fines in

violation of the Eighth Amendment, (vi) a Monell claim, and (vii) violation of the Michigan

Freedom of Information Act.

       Following discovery, Federspiel and the Sheriff’s Department moved for summary

judgment. The district court granted judgment to Defendant “Office of Sheriff” on the basis that

it was not a separate legal entity subject to suit under Michigan law. See Ostipow v. Federspiel,

No. 16-CV-13062, 2018 WL 3428689, at *3 (E.D. Mich. July 16, 2018). The district court also

dismissed “Deputy Does 1-10.” Id. at *3–4. That left Federspiel as the only defendant. As to

him, the district court rejected the Ostipows’ substantive due process claim because none of

Federspiel’s actions “shock[] the conscience.” Id. at *5. It likewise rejected the Ostipows’

procedural due process claim because they received adequate process during the state trial and

appellate proceedings. Id. at *5–6. With respect to the Ostipows’ takings claim, the district court

held that the civil asset forfeiture regime, which is quasi-criminal in nature, does not constitute a

taking for public use and thus is not subject to the Fifth Amendment. Id. at *6–7. The district

court also rejected the Ostipows’ excessive fines claim, holding that it was not clearly established

that the Eighth Amendment’s Excessive Fines Clause applied against the States, and, in any event,

that the forfeiture was not “grossly disproportional” to the gravity of the offense. Id. at *7–10.

Finally, because none of the alleged constitutional violations occurred pursuant to a policy,

procedure, or custom of Saginaw County, the district court dismissed the Ostipows’ Monell claim.

Id. at *10–11. The district court then declined to extend supplemental jurisdiction over the

remaining state-law claims. Id. at *11. This appeal followed.




                                                 4
Case No. 18-2448, Ostipow v. Federspiel


                                            ANALYSIS

       To obtain relief under 42 U.S.C. § 1983, the Ostipows must demonstrate a (1) right secured

by the Constitution and laws of the United States; (2) that was violated; (3) by a person acting

under color of state law. See Parratt v. Taylor, 451 U.S. 527, 535 (1981).

       Federspiel asserts that he is entitled to qualified immunity as to each of the Ostipows’

constitutional claims. Qualified immunity is an affirmative defense to a § 1983 claim. It shields

a government official from liability so long as his conduct did not violate a clearly established

constitutional right. Gean v. Hattaway, 330 F.3d 758, 767 (6th Cir. 2003) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)); see also Walker v. Davis, 649 F.3d 502, 503 (6th Cir. 2011).

When determining whether an official is entitled to immunity, we ask two related questions: (1) did

the government actor violate a constitutional right; and (2) was that right clearly established at the

time of the alleged violation? Jones v. City of Elyria, 947 F.3d 905, 913 (6th Cir. 2020). Unless

both questions are answered in the affirmative, a claim will not proceed to trial. See Baynes v.

Cleland, 799 F.3d 600, 609–10 (6th Cir. 2015).

       We note at the outset that we have before us only the Ostipows’ claims against Federspiel.

The Ostipows named Federspiel as a defendant in both his individual and official capacities. When

an officer is sued in his official capacity, the law treats that suit as an action against Saginaw

County. See Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1245–46 (6th Cir. 1989).

       The district court granted summary judgment to Defendant “Office of Sheriff” because it

is not a separate legal entity under Michigan law. See Ostipow, 2018 WL 3428689, at *3. The

Ostipows at most challenge that in a cursory footnote. Appellant Br. at 3 n.1. An argument raised

in a footnote and in a “perfunctory manner unaccompanied by some effort” to develop the point is

routinely deemed forfeited. United States v. Phinazee, 515 F.3d 511, 520 (6th Cir. 2008);



                                                  5
Case No. 18-2448, Ostipow v. Federspiel


McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997). That being the case here as to the

“Office of Sheriff,” we consider only those claims against Federspiel in his official and individual

capacities.

                                        The Takings Claim.

       The Ostipows claim they are entitled to recover the value of their improperly seized and

sold property as just compensation for Federspiel’s violation of the Fifth Amendment’s Takings

Clause. The Takings Clause, which applies to the States through the Fourteenth Amendment,

commands that “private property [shall not] be taken for public use, without just compensation.”

U.S. CONST. amend. V; see Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226 (1897). When the

government acquires private property for a public purpose, the plain language of the Takings

Clause requires that the government pay the property owner. Murr v. Wisconsin, 137 S. Ct. 1933,

1942 (2017). To secure payment, a property owner may sue the government in federal court at the

time of the taking for the “deprivation” of a right “secured by the Constitution.” Knick v. Township

of Scott, 139 S. Ct. 2162, 2170 (2019) (quoting 42 U.S.C. § 1983).

       Federspiel asserts that he is entitled to qualified immunity as to each of the Ostipows’

claims, including the takings claim. To overcome Federspiel’s qualified immunity defense here,

the Ostipows must show not only that their injury constitutes a Takings Clause violation, but also

that such a violation was clearly established at the time of the alleged violation. With respect to

the latter, we have “repeatedly” been warned not to define the right at “a high level of generality.”

Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). To demonstrate that a law is “clearly established,”

then, the Ostipows must identify a factually similar case that would have given “fair and clear

warning” to Federspiel about what the law requires. White v. Pauly, 137 S. Ct. 548, 552 (2017)

(quotation omitted). Controlling precedent, in other words, must “place[] the . . . constitutional



                                                 6
Case No. 18-2448, Ostipow v. Federspiel


question beyond debate.” Hearring v. Sliwowski, 712 F.3d 275, 280 (6th Cir. 2013) (quoting al-

Kidd, 563 U.S. at 741).

       As the Ostipows first describe things, their claim has the feel of a taking. The government

came to their home, took their property, sold it, and have yet to compensate the Ostipows. But

upon closer inspection, their claims do not quite match up with traditional Takings Clause

jurisprudence. The Ostipows’ takings claim does not target the aspect of their story one might

expect. They do not contest the scope of the government’s initial seizure of their property, the

treatment of their property when it was seized, or even the government’s sale of that property

during the forfeiture proceedings, which they concede occurred pursuant to a then-valid court

order. Ostipow, 2018 WL 3428689, at *4. The Ostipows instead focus on the 2016 judgment,

which declared their ownership over some of the seized property. Characterizing those forfeiture

proceedings as a “failure” that constitutes a “taking,” the Ostipows now seek their “just

compensation.”

       1. Governments seize property for different reasons, utilizing different theories of power.

When a government commits a taking for public use, it does so under its civil, eminent domain

powers. A classic example is taking private property to build a public road through the property.

When it does so, the government owes the property owners compensation for the land it took.

       Governments also seize property utilizing their police powers, which are criminal in nature.

See, e.g., United States v. Droganes, 728 F.3d 580, 591 (6th Cir. 2013). Indeed, it is well settled

that a state’s seizing and retaining property as part of a criminal investigation is not a “taking” for

a “public purpose” under the Fifth Amendment, and thus does not give rise to a claim for just

compensation. Bennis v. Michigan, 516 U.S. 442, 452–53 (1996); see also AmeriSource Corp. v.

United States, 525 F.3d 1149, 1155 (Fed. Cir. 2008) (noting that “the character of the government



                                                  7
Case No. 18-2448, Ostipow v. Federspiel


action is the sole determining factor” as to whether a plaintiff may bring a compensable takings

claim).

          Indeed, several circuits have concluded that the use of police power to lawfully seize and

retain property categorically bars a Takings Clause claim. See, e.g., Lech v. Jackson, 791 F. App’x

711, 717 (10th Cir. 2019), cert. denied, No. 19-1123 (June 29, 2020) (dismissing a takings claim

brought by innocent plaintiffs whose home was destroyed after police officers used an armored

vehicle and explosives to apprehend a suspect who fled officers and sneaked into the plaintiffs’

house); Zitter v. Petruccelli, 744 F. App’x 90, 96 (3d Cir. 2018) (finding no takings claim because

officers acquired the ultimately destroyed property pursuant to a lawful search warrant); Johnson

v. Manitowoc County, 635 F.3d 331, 333–34, 336 (7th Cir. 2011) (describing a takings claim as a

“non-starter” when damage to a landlord’s home occurred as a result of actions taken under the

state’s police power); Acadia Tech., Inc. v. United States, 458 F.3d 1327, 1331–32 (Fed. Cir. 2006)

(collecting cases and dismissing a takings claim where the government seized property, failed to

initiate forfeiture proceedings for four years, ultimately agreed to dismiss the forfeiture action, but

did not return the property until its only value was as scrap).

          So too here.   The Ostipows’ property was seized pursuant to uncontested warrants

authorizing the search and seizure of property believed to be involved in drug manufacturing. The

Saginaw County prosecutor, in turn, initiated forfeiture proceedings against that property. The

weight of authority holds that claims emanating from the use of police power are excluded from

review under the Takings Clause. To the extent there conceivably is merit to the Ostipows’

suggestion that civil asset forfeiture actions specifically should be reviewed under the Takings

Clause, no such rule is clearly established, meaning Federspiel is entitled to qualified immunity on

that claim.


                                                  8
Case No. 18-2448, Ostipow v. Federspiel


       In reaching this conclusion, we do not mean to suggest that victims of civil asset forfeiture

abuse have no recourse under the Constitution. For example, a litigant might invoke the Due

Process Clause, rather than the Takings Clause, to argue for heightened scrutiny in reviewing a

state’s determination that any seized property was an instrument to or proceed of a crime. See,

e.g., Leonard v. Texas, 137 S. Ct. 847 (2017) (Thomas, J., respecting denial of cert.). And it is

perhaps no coincidence that several states, including Michigan, recently have taken steps to curb

forfeiture abuses. See, e.g., 2019 Mich. Pub. Acts. 7, 8, 9. This area of law, in other words, is one

that appears to be evolving, even if that evolution does not help the Ostipows today.

       2. Resisting this conclusion, the Ostipows assert that their ultimate success in state court

transforms this case from one about the exercise of police power into one implicating the Takings

Clause. That result, they say, is required by the Supreme Court’s recent decision in Nelson v.

Colorado, 137 S. Ct. 1249 (2017). Nelson invalidated a Colorado law that required defendants

whose convictions had been reversed or vacated to later prove their innocence before they would

be refunded the costs, fees, and restitution paid in connection with their invalid conviction. Id. at

1254–58. But Nelson did so on procedural due process grounds; it did not address a takings claim.

Id. at 1252.

       That the Ostipows received a judgment in their favor does not change our conclusion.

Regrettably, the Ostipows have now waited over three-and-a-half years to be paid on that judgment

(perhaps in part due to the length of this litigation). Yet even then, no clearly established takings

claim exists. Over a century ago, the Supreme Court held that the property right created by a

judgment against a government entity is not a right to payment at a particular time; it is instead a

recognition of a continuing debt of that government entity. Louisiana ex rel. Folsom v. Mayor of

New Orleans, 109 U.S. 285, 289 (1883). And so while the Ostipows have a property right in their



                                                 9
Case No. 18-2448, Ostipow v. Federspiel


judgment, there is no evidence that property right ultimately will not be honored. See, e.g.,

Freeman Decorating Co. v. Encuentro Las Ams. Trade Corp., 352 F. App’x 921, 924 (5th Cir.

2009) (citing Minton v. St. Bernard Parish Sch. Bd., 803 F.2d 129, 132 (5th Cir. 1986) (a school

board’s delay in satisfying a judgment does not create the deprivation of a property right)). At

least so far, Federspiel has not explicitly refused to satisfy the judgment. Compare Appellee Br.

at 19, 32 (explaining that Saginaw County has to follow certain procedures before it can approve

the Sheriff’s expenditures), with Wayside Church v. Van Buren County, 847 F.3d 812, 823 (6th

Cir. 2017) (Kethledge, J., dissenting) (arguing that a ripe takings claim existed where “the

defendant Van Buren County took property worth $206,000 to satisfy a $16,750 debt, and then

refused to refund any of the difference,” explaining that in “some legal precincts that sort of

behavior is called theft”). Rather, Federspiel has repeatedly recognized that debt. The Sheriff and

his office purport to be working with the Saginaw County’s Prosecutor’s Office for guidance on

the amount owed. Appellee Br. at 19, 32. Yet Federspiel claims that this suit, filed three weeks

after entry of the state court judgment, simply did not afford sufficient time for the court or the

Prosecutor’s Office to provide such guidance. Id. Once that determination is resolved and the

funds are allocated by the County Board of Commissioners, however, Federspiel asserts that the

County Treasurer will pay the value of the judgment to the Ostipows. See Appellee Br. at 32–33;

Mich. Comp. Laws § 600.6093.

       3. While we resolve the Ostipows’ takings claim in Federspiel’s favor, we disagree with

his suggestion that the Ostipows do not have a “final judgment.” In making that suggestion,

Federspiel invokes a procedural relic that long plagued our Takings Clause jurisprudence. These

difficulties trace back to Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson

City, 473 U.S. 172 (1985), which established a two-part test to determine when a takings claim is



                                                10
Case No. 18-2448, Ostipow v. Federspiel


ripe. Under that test, a takings claim could be brought in federal court only after (1) the plaintiff

received a “final decision” from the relevant government actor; and (2) the plaintiff sought

“compensation through the procedures the State has provided for doing so.” Wayside Church,

847 F.3d at 818. Depending upon the state, those procedures often included not only routine

exhaustion of administrative procedures, but additional, typically cumbersome, state-imposed

remedies, such as requiring the property owner to initiate reverse condemnation proceedings.

Williamson, 473 U.S. at 196–97; see Lumbard v. City of Ann Arbor, 913 F.3d 585, 589–90 (6th

Cir. 2019). But the Supreme Court recently overruled Williamson. Today, “a taking without

compensation violates the self-executing Fifth Amendment at the time of the taking,” meaning

“the property owner can bring a federal suit at that time.” Knick, 139 S. Ct. at 2172. It follows that

after Knick, if an ancillary proceeding were required (akin to an inverse condemnation proceeding),

the Ostipows would not have to exhaust that avenue before asserting a takings claim in federal

court. Id.

        Of course, the Ostipows’ proceedings are before us in a different posture. A civil asset

forfeiture action was initiated against the Ostipows’ property, and the Ostipows ultimately received

a favorable judgment ordering the return of that property. In this setting, Michigan law does not

appear to require the Ostipows to initiate a separate adjudication to satisfy their judgment. We

asked for supplemental briefing on this very question, and neither party supplied answers as to

what, exactly, the parties must do to determine a sum certain for the judgment. Federspiel merely

reiterated that the Ostipows “have never presented proofs for judicial determination of the amount

of compensation due”; the Ostipows, in turn, claim nothing more is required, believing they should

have received a check or their property back immediately upon the judgment’s being entered in

their favor.



                                                 11
Case No. 18-2448, Ostipow v. Federspiel


       While perhaps providing few answers, the parties’ supplemental briefs do shed light on

how the parties might proceed from here. The parties appear to either disagree or lack clarity as

to certain aspects of the state-court judgment. For example, the parties seem to have different

views about how to compensate the Ostipows for their “full ownership interest.” Are the Ostipows

entitled to the proceeds of the sale of their property—presumably a fixed number available to

Federspiel—or to the property’s fair market value, as the Ostipows claim? See Appellant Br. at

38 n.11; Appellant Supp. Br. at 2–3; see also Ostipow, 2018 WL 3428689, at *5 (citing In re

Forfeiture of $256 and One 1978 Oldsmobile, 517 N.W.2d 732, 734 (Mich. 1994) for the

proposition that “the prior disposition of the assets will not bar entry of an order directing the

plaintiff to return the assets or the proceeds from the disposition of the assets”). The parties also

appear to disagree over the amount and continuing validity of Royetta’s dower interest. See

generally Zaher v. Miotke, 832 N.W.2d 266, 271 (Mich. Ct. App. 2013) (noting that a dower

interest is one-third of the property); In re Forfeiture of $234,200, 551 N.W.2d 444, 448 (Mich.

Ct. App. 1996) (conferring standing on decedent’s heirs to pursue decedent’s innocent-ownership

defense in forfeiture proceedings).

       Michigan law provides numerous mechanisms to assist judgment creditors and debtors in

clarifying and enforcing a judgment, from subpoenas to motion practice to extraordinary writs.

See, e.g., Mich. Comp. Laws §§ 600.6101–600.6143; Mich. Ct. R. 2.620–21. For instance, a

subpoena might issue to determine the sale price of the farmhouse, the car, and other items.

Likewise, a request for modification of the judgment might clarify whether the Ostipows are

entitled to the proceeds of the sale of their property or to the fair market value of their property at

the time of sale. And if it is the latter, a post-judgment evidentiary hearing might help determine




                                                  12
Case No. 18-2448, Ostipow v. Federspiel


that value. But at day’s end, it is the state court’s duty to oversee and ensure the satisfaction of the

Ostipows’ judgment. With this appeal resolved, we trust that satisfaction will occur expeditiously.

                                The Substantive Due Process Claim.

       The Ostipows’ substantive due process claim targets the same conduct as their takings

claim. And it fares no better. To invoke substantive due process protections, a purported right

must implicate one of the three fundamental categories protected by that clause—life, liberty, or

property. Bowers v. City of Flint, 325 F.3d 758, 763 (6th Cir. 2003). When one of those

fundamental interests is at stake, substantive due process limits governmental action or inaction

that is “arbitrary,” Upsher v. Grosse Pointe Pub. Sch. Sys., 285 F.3d 448, 453 (6th Cir. 2002), or

“shocks the conscience.” Gohl v. Livonia Pub. Sch. Dist., 836 F.3d 672, 678 (6th Cir. 2016); see

County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). We view such claims with a dose of

skepticism, as “guideposts for responsible decisionmaking in this unchartered area are scarce and

open-ended.” Collins v. City of Harker Heights, 503 U.S. 115, 125, 128 (1992) (explaining that

substantive due process is not intended to provide “rules of conduct” or best practices to regulate

how we “liv[e] together in society”). And, of notable relevance here, the doctrine may not be used

as a stand-in to address a failed takings claim. Hillcrest Prop., LLP v. Pasco County, 915 F.3d

1292, 1304 (11th Cir. 2019) (Newsom, J., concurring in the judgment).

       After eight years of state litigation, the Ostipows have every right to be aggravated over

the delay in Saginaw County satisfying their judgment. As frustrating as those actions may be,

however, Federspiel’s conduct does not “shock[] the conscience.” See Gohl, 836 F.3d at 678. A

valid court order, issued after the Ostipows had an opportunity to be heard, instructed that the

Ostipows’ property was forfeited “to the Saginaw County Sheriff’s Department” to “be disposed

of by said Department as provided by statute, MCL 333.7524.” It was not until seven years later—



                                                  13
Case No. 18-2448, Ostipow v. Federspiel


after a second trial court proceeding following a second remand from the Michigan Court of

Appeals, and long after the property was sold—that the order was partially modified. Absent a

stay of execution of the initial order, Federspiel seemingly was free to act upon the order’s

command.

       While the court order directing Federspiel to dispose of the property eventually was

partially reversed, Michigan law provides the Ostipows at least one remedy: entitlement to the

proceeds of the sale of their property during the forfeiture proceeding. See In re Forfeiture of $256

and One 1978 Oldsmobile, 517 N.W.2d at 734. And they received a remedy when the Saginaw

County Circuit Court issued a judgment in their favor, a point Federspiel does not dispute. Equally

true, as previously explained, there is no right to instantaneous satisfaction of a judgment when a

governmental entity is involved. Folsom, 109 U.S. at 289.

                               The Procedural Due Process Claim.

       The Ostipows next claim that their procedural due process rights were violated when they

were required to post a bond to stay execution of the circuit court’s forfeiture decision while they

appealed that decision. By command of the Fourteenth Amendment, no State may “deprive any

person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV. To

prevail on their procedural due process claim, the Ostipows thus must prove that Federspiel

deprived them of a “liberty or property interest” without affording them the procedural protections

the Constitution requires. Phillips v. McCollom, 788 F.3d 650, 653 (6th Cir. 2015).

       One part of their claim is easily established. No one disputes the Ostipows have a property

interest in the real and personal property seized from them in connection with Steven’s arrest.

       But the remaining part of their claim—that they were denied procedural protections—is

another story. The Ostipows say those protections were denied when they were required to post a



                                                 14
Case No. 18-2448, Ostipow v. Federspiel


supersedeas bond to stay the execution of forfeiture pending appeal. Assuming, for purposes of

argument, that Federspiel is the proper party against whom to assert this claim, accord Ostipow,

2018 WL 3428689, at *6, the Ostipows’ claim still fails.

        A supersedeas bond, also commonly known as an appellate bond, is a standard requirement

in many courts, including our own. See, e.g., Fed. R. App. P. 8; Ohio Civ. R. 62; N.Y. C.P.L.R. §

5519; Cal. Code Civ. Proc. § 917.1. As was the case here, losing litigants in the trial court are

often asked to post a supersedeas bond to stay execution of the trial court’s judgment, pending the

outcome of their appeal. The bond is not part of the civil asset forfeiture regime; it is a general

rule of Michigan civil procedure applicable to a variety of civil appeals. See Mich. Ct. R. 7.209.

        While the supersedeas bond requirement may seem unfair to the Ostipows, particularly

now that their claims have been partially vindicated, it did not impermissibly burden their

procedural due process rights. The Ostipows were able to challenge the forfeiture of their property

in the trial court. They received notice of the proceedings, filed an answer, and, upon receiving an

unfavorable judgment, took an appeal. The bond requirement, in other words, did not alter their

ability to challenge the seizure of their property. It merely hindered their ability to stay execution

of the judgment pending appeal.

        And perhaps most critically, the Ostipows had the opportunity to challenge that bond when

it was imposed. The circuit court granted their request to stay the forfeiture proceedings pending

appeal, subject to the Ostipows posting the bond. The Ostipows then asked the Michigan Court of

Appeals to lift the bond condition. In making that request, the Ostipows never alleged any financial

hardship or inability to meet the bond requirements, nor did they offer to provide a different type

of bond, such as a surety bond. Without any reason to alter the bond requirements, the appellate

court left the circuit court’s order intact.



                                                 15
Case No. 18-2448, Ostipow v. Federspiel


       The Ostipows gain no mileage from In re Forfeiture of 2000 GMC Denali, 892 N.W.2d

388 (Mich. Ct. App. 2016). The plaintiff there challenged Michigan’s requirement to post a bond

before challenging civil asset forfeiture proceedings in the trial court. Id. at 391. Because the

plaintiff could not afford to post a bond, the Michigan Court of Appeals held that the bond

requirement, as applied, denied the plaintiff her “opportunity for a hearing,” meaning that certain

provisions of the forfeiture statute were unconstitutional as applied. Id. at 400. Michigan has now

eliminated this requirement. See Mich. Comp. Laws § 333.7522. But this has no impact on the

Ostipows. For one thing, Denali did not involve supersedeas bonds. For another, the Ostipows,

unlike the plaintiff in Denali, paid the bond necessary to challenge the forfeiture proceedings in

the circuit court. And in any event, despite having their property sold during the pendency of their

appeal due to their failure to pay the supersedeas bond, the Ostipows were still entitled to

alternative remedies should their claims be vindicated on appeal. See In re Forfeiture of $53.00,

444 N.W.2d 182, 184 (Mich. Ct. App. 1989). When vindication came to pass, the circuit court

issued a judgment in the Ostipows’ favor. There was thus no due process violation.

                                   The Excessive Fines Claim.

       The Ostipows’ Excessive Fines Clause claim suffers the same fate. The Ostipows allege

that Federspiel violated the Eighth Amendment by imposing an excessive fine “in the form of the

value of the forfeiture of [Gerald’s] interest in the [f]armhouse and its contents[.]” Compl. ¶67.

But we do not have to pass on whether Federspiel violated the Eighth Amendment here. Either

way, the law was not “clearly established” at the time of the alleged misconduct.

       In relevant part, the Eighth Amendment provides that “[e]xcessive bail shall not be

required, nor excessive fines imposed . . . .” U.S. CONST., amend. VIII. The Ostipows rely

on United States v. Bajakajian, 524 U.S. 321, 331 n.6 (1998) to support their claim that not only



                                                16
Case No. 18-2448, Ostipow v. Federspiel


is seizure and forfeiture of their property an excessive fine, but also that such a violation was

clearly established at the time.        But twelve years after Bajakajian, the Supreme Court

acknowledged it “never [had] decided whether the Third Amendment or the Eighth Amendment’s

prohibition of excessive fines applies to the States through the Due Process Clause.” McDonald

v. City of Chicago, 561 U.S. 742, 765 n.13 (2010). We likewise had not explicitly ruled on whether

the Excessive Fines Clause applied against the States. See Ross v. Duggan, 402 F.3d 575, 588 (6th

Cir. 2004) (assuming without comment that the Excessive Fines Clause applied against the States

to affirm dismissal of an excessive fines claim). Indeed, it was not until just last year that the

Supreme Court, in Timbs v. Indiana, 139 S. Ct. 682 (2019), decided that the Excessive Fines Clause

applied to the States and did so in the context of civil in rem forfeiture proceedings.

        Given that neither Federspiel nor the Michigan courts had the benefit of Timbs at any point

during the forfeiture proceedings, whether a forfeiture may constitute an excessive fine in violation

of the Eighth Amendment was not “clearly established,” for purposes of asserting a § 1983 claim.

As such, Federspiel is entitled to qualified immunity on this claim as well.

                                          The Monell Claim.

        Lastly, the Ostipows challenge the dismissal of their claim asserted pursuant to Monell v.

Dep’t of Soc. Servs., 436 U.S. 658 (1978), on the basis that they did not have sufficient notice that

Federspiel had moved for summary judgment on those claims. The record suggests otherwise.

Federspiel moved for summary judgment on all “constitutional claims,” and, relatedly, asked the

district court to “dismiss[] this litigation with prejudice.” As such, there was no notice issue. The

Ostipows had the opportunity either to brief their Monell claim or, at the very least, alert the district

court that they believed Federspiel had not sufficiently raised the matter. See Celotex Corp. v.

Catrett, 477 U.S. 317, 326 (1986). We thus see no error here either.



                                                   17
Case No. 18-2448, Ostipow v. Federspiel


                                      CONCLUSION

       For the reasons stated above, we AFFIRM the judgment of the district court.




                                             18
