Republican political consultant Mike Madrid isn’t used to getting calls from the ACLU, and yet he has found himself working with the civil liberties group because some practices are so egregious that Republicans and Democrats should have no trouble finding common cause. The issue is civil asset forfeiture — also known as “policing for profit.” The federal government can seize your property, and the only way you can get it back is to prove you are not guilty of a crime. California law prohibits local authorities from permanently seizing most property without a conviction, but there’s a loophole in the law — called “equitable sharing.” Local police can seize your property, hand jurisdiction over to the feds, and get rewarded with up to 80 percent of the goodies even if prosecutors fail to convict — or even charge — an offender.
“There are very few things in Sacramento that are this cut and dry,” quoth Madrid. Americans fought the British in the Revolutionary War in order to guarantee due process and the presumption of innocence. “If you were not convicted,” Madrid noted, “people shouldn’t be taking your stuff.”
With that reasoning in mind, Madrid began working for the passage of Senate Bill 443, introduced by state Sen. Holly Mitchell, D-California, to curb “equitable sharing” abuses. She was spurred by a Drug Policy Alliance report on the civil asset forfeiture abuses. While supporters talk about the practice as a tool to defund drug cartels, the report found that on average, the seizures were small change. San Diego attorney Löan T. Shillinger told me many of her clients are small-business owners who drive with cash in the car. Mitchell recalls a food-truck driver who had $10,000 when police asked to search his car. He had nothing to hide. Next thing he knew, he had to hire a lawyer if he wanted his money back. Many people in his situation are shocked to discover the government can treat law-abiding people under the assumption that they are guilty.
SB443 was a good cause, and so it sailed even through the dysfunctional swamp known as the Legislature. It sped through state Senate committees and passed the Senate with an overwhelming 38 (out of 40) votes last year.
Then came “the badges,” as Madrid put it. Mitchell put it another way, “It was as if I put my hand in their entitled cookie jar.” California law enforcement came down hard on lawmakers from both parties. The California District Attorneys Association opposed SB443, director of legislation Sean Hoffman told me, because it was “overly broad” and “would have really crippled asset forfeiture in California” and hampered prosecutors ability to go after “large drug operations.” Support melted away. By the time SB443 reached the Assembly floor, only 24 members voted “aye” and 44 opposed it. Like cockroaches, 12 members skittered away from voting entirely.
Law enforcement soon learned that it had won the kind of legislative victory that leaves a public relations stain on the victors. The mere consideration of the measure aired stories of high-profile abuses — such as when prosecutors have used asset forfeiture to seize buildings from landlords of a medical marijuana dispensary.
Both sides had an incentive to work together. On Thursday, the Assembly voted to amend SB443. Absent a guilty verdict, locals can only get a cut when more than $40,000 in cash has been seized. Locals still will get no percentage of property seizures without a guilty verdict. The district attorneys now are neutral on the measure. Expect SB443 to pass in the Assembly soon.
Until then, consider the words of Daisy Vieyra of the American Civil Liberties Union: “It can happen to anyone, that’s the frightening part.”
Mitchell told me that, as she listened to public comments about her bill, she realized “it could have been me.” Her late mother had a fondness for casino gambling. Every year Mitchell would drive her mother to Las Vegas for a weekend with one-armed bandits. The two would drive home with cash — two African-American women in a “high-profile” automobile with smiles on their faces. They didn’t do anything wrong, but under the current system, their holdings would be presumed guilty.
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