Shock: Legislature Does Right Thing on a Liberty Issue!
Steven Greenhut
by

Sacramento

Our left-leaning Legislature isn’t exactly known for its commitment to protecting the constitutional liberties of the citizenry, which is an understatement of great magnitude. When I speak to civic groups about the state Capitol, I often refer to those “scared straight” programs where police take “at risk” youth to prisons to scare them away from a life of crime. I argue, a bit facetiously, that all voters ought to visit a floor session to hear what legislators say and do. It might scare them into paying more attention before they vote.

That’s why I was so stunned Monday when the Assembly voted overwhelmingly in favor of one of the most significant reforms to come before it this session — one that promotes a core concept in the Constitution’s Fifth and Fourteenth Amendments: due process. S.B. 443 reins in the ability of law-enforcement officials to seize private property through a disreputable system known as “civil asset forfeiture.” Increasingly, police agencies grab the cars, homes, and cash of ordinary people by alleging the property was used in the commission of a drug crime.

Because the agencies target the property, they need not convict or even file charges against its owner. The courts are filled with legal cases such as Los Angeles County v. a 2010 Ford Taurus or the State of California v. $15,000. In a typical case, a man is driving across the state with cash that he was going to use to buy a vehicle, but was pulled over for speeding. The cops saw the cash, assumed it was the proceeds of drug laundering and seized it. It’s then up to the owner to sue to get the money back. The legal fees often exceed the value of the property seized.

In one precedent-setting legal case from Michigan in 1996, a man had sex with a prostitute in a car he jointly owned with his wife. The prosecutor seized the car. The U.S. Supreme Court ultimately ruled that the wife was not owed compensation, even though she had no knowledge of his crime. Other forfeiture cases involve people who commit crimes with other people’s property. The authorities target the property, so the owner does not get due process.

Imagine if the authorities seize your house because of something a visitor or renter might have done there. One needn’t imagine too hard. In Anaheim, federal officials tried to seize a $1.5 million commercial building owned by a couple after one of its tenants (a marijuana dispensary) was accused of selling $37 in pot to an undercover officer. That case eventually was dropped, but there’s no reason police agencies and prosecutors cannot try the same approach elsewhere.

Critics complain about such policing for profit. A number of years ago, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) handed out pen knives to its agents as gifts. Emboldened on the side was the agency’s acronym spelled out: Always Think Forfeiture. That was stopped amid bad publicity, but there’s little doubt such an attitude permeates law enforcement these days, especially as pension spending puts a crimp in agency budgets.

It’s like those old Southern speed traps writ large. “Asset forfeiture was conceived as a way to cut into the profit motive that fueled rampant drug trafficking by cartels and other criminal enterprises, in order to fight the social evils of drug dealing and abuse,” explained John Yoder and Brad Cates in a 2014 Washington Post column. “Over time, however, the tactic has turned into an evil itself, with the corruption it engendered among government and law enforcement coming to clearly outweigh any benefits.” The authors had run the U.S. Justice Department’s asset-forfeiture program in the 1980s, which gives added weight to their critique.

Yet the reasons they outlined — i.e., “law enforcement agents and prosecutors began using seized cash and property to fund their operations, supplanting general tax revenue…” — became the reasons it has become so difficult to reform the process. There’s just so much money involved.

New Mexico passed significant reforms in 2015 by requiring a conviction before a taking. A video was released showing the then-Las Cruces city attorney speaking to government and law enforcement about the “gold mine” of asset forfeiture: “We could be czars. We could own the city. We could be in the real estate business,” he said. That brazenness helped secure bipartisan passage. But National Public Radio reported in June: “Legislators say some cities’ budgets are so dependent on seized assets that they [are] disregarding the law.”

On the surface, California has fairly tough restrictions on asset forfeiture. For instance, under state law, the authorities need to secure a conviction for the forfeiture of property valued under $25,000. The typical taking is for approximately $5,000, so the law was designed to cut back on abuses, given that it quite obviously is not a drug kingpin who must surrender his 1997 Buick LeSabre.

But our government increasingly is unbound by the spirit of its own laws. State police agencies and prosecutors used a clever work around called “equitable sharing.” Essentially, they would transfer the seized assets to the federal government and conduct joint operations, as federal forfeiture law is far looser than California’s law. The feds and the locals would then “equitably” share the dollars seized in their joint operations.

As an aside, police agencies are not supposed to supplant existing revenues with asset-forfeiture proceeds. The reason is obvious: That would result in forfeiture “quotas” and would encourage officers to seek cash rather than justice. Yet a report from the Drug Policy Alliance found that a handful of Los Angeles County cities “are engaging in budget practices that look a lot like supplanting.” Some cities “were found to be prioritizing asset forfeiture over general public safety concerns, like response times and sufficient patrol officers.”

When Sen. Holly Mitchell, D-Los Angeles, and Assemblyman David Hadley, R-Torrance, introduced S.B. 443 last year, the major police organizations came out against it mainly because of what it would mean for their revenue streams. The bill in its original form would have required an underlying conviction before almost all seizures and would have banned the equitable-sharing process as a way to get around that requirement.

In its opposition letter last year, the California Police Chiefs Association listed four specific problematic provisions. Three of them involved the distribution of proceeds or other costs and one complaint about “burdensome reporting requirements.” A main concern: “Law enforcement and DA’s offices across the state would lose over $1.6 million alone based on the new distribution formula and the state general fund would have lost approximately $660,000.00 in 2010.” It mentioned civil asset forfeiture as an “important tool for law enforcement to seek justice against drug dealers” toward the end of the letter, but we all know this fight mainly is about money, not justice. The bill was moving forward, but the law-enforcement lobby pulled out the stops to halt it.

To its credit, however, the chiefs’ association removed its opposition to the latest version of the bill and paved the way for the Assembly passage on Monday. The compromise allowed police and prosecutors to use asset forfeiture for cash and negotiable instruments above $40,000 without a conviction. About 80 percent of cash takings are below $40,000, so this would eliminate the bulk of the problem. The bill would still require a conviction for takings of property (houses, boats, cars, etc.) valued above $40,000, thus eliminating the injustice found in that Anaheim example. Essentially, the bill beefs up the state’s law and stops locals from circumventing it via the feds. They can still work with the feds — but they need to secure a conviction.

“With the agreement on SB 443, conflicting sides took into consideration each other’s views and found a compromise that enhances safeguards on Californians’ rights, while ensuring law enforcement has the tools necessary to combat the gangs and drug traffickers damaging our communities,” said Ken Corney, head of the police chiefs’ association, in a statement.

It’s heartening that a sensible pro-liberty bill passed the Assembly, 69-7, with bipartisan support and the backing of top law-enforcement officials and civil libertarians. The bill still has a couple of legislative hurdles before heading to Gov. Jerry Brown. His position on it is unknown. Not a single Republican voted against it. Only a few union-allied Democrats voted no. Could there be hope for California? Nah, but I might not be able to use my “scared straight” laugh line for a while.

Steven Greenhut
Steven Greenhut
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Steven Greenhut is a senior fellow and Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.
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