Will State Ban Property Seizure from People Who Aren’t Criminals?

Originally posted at CALmatters.
By Glen Martin.

In civil liberties circles, she is known by the pseudonym of Elizabeth James—a retiree from the phone company who was contemplating a cross-country trip with her machinist husband. The two had worked for decades, raising two children and caring for her developmentally disabled sister, who lived in a home the couple had bought and remodeled in East Palo Alto, two blocks from their own bungalow. But their plans were upended when East Palo Alto police raided their sister’s home and arrested the James’s son, who had been living in a back room, for drug-dealing.

Although Elizabeth James was never charged with a crime—she insisted she didn’t know what her son was up to— city police were working with federal authorities who evicted her disabled sister and seized the house under a process known as civil asset forfeiture.

Federal records show that in 2014, the last year reported, 220 California law enforcement agencies partnered up with federal prosecutors to instigate civil asset forfeiture, allowing them to seize and liquidate the assets of people who weren’t convicted or even charged with crimes.

The putative goal of civil asset forfeiture is simple: to deny drug dealers working capital and divert the value of their assets to crime-fighting efforts. But a growing chorus of critics from both the left and right have condemned it as “policing for profit,” arguing that it strips citizens of their goodswithout due process.

After overcoming objections from some in law enforcement, a bill to curtail the practice cleared the Legislature by a wide margin and is awaiting Gov. Jerry Brown’s signature.

“SB 443 isn’t the platinum reform standard for civil asset forfeiture, but it’s still a very good bill,” said Lee McGrath, the legislative counsel for the Institute for Justice, a Virginia-based libertarian public interest law firm. “More to the point, this is a California bill. When California does something, everybody in the nation pays attention.”

California state law already prevents civil asset forfeiture in most state cases—an exception being large bundles of cash—unless the owner is convicted of a crime. But it allows state and local police to collaborate on drug cases with the federal government, which not only doesn’t require convictions for civil asset forfeiture, but rewards the cooperating agencies with up to 80 percent of the value of the seized assets.

The result in California: a relative leveling in the number of state civil asset forfeitures under state law over the past decade, but a big surge in the federal variety. A state Senate bill analysisindicates that the amount California agencies collected under the federal asset forfeiture program in 2014 was $77 million, marking a 133 percent increase over the amount collected just 10 years ago.

“Local and state agencies have been inappropriately incentivized to kick their cases to the federal courts, circumventing state law and undermining state authority,” McGrath said.

The bill’s biggest impact: It would ban local and state police from reaping the gains of federal civil asset forfeiture unless the owner of the assets is convicted of a crime. It also would bolster existing protections under state law by raising the threshold for the forfeiture of cash absent a conviction from $25,000 to $40,000, and requiring a conviction before the government can claim property such as boats and cars.

Even if SB 443 is signed into law, it will be too late for Elizabeth James. She and her husband battled for more than year to get their property back, taking out credit cards to meet their spiraling legal fees. Ultimately, their lawyer advised them to take a deal: Their son would plead guilty and the government would drop all claims to the house, though it would not reimburse the couple for legal fees or repair the damage to the home incurred during the police raid. “The government, they can come in and just take anything,” she is quoted saying in a report by the American Civil Liberties Union. “They have no respect for a person who works all their lives.”

Her case illustrates “why I think civil asset forfeiture is tantamount to theft,” said her attorney, James Cooper. He maintained James’s son was a “low-level dealer” who had never sold drugs out of the seized house, insisting “the house was in no way germane to the case,” he said. The U.S. Attorney’s office and East Palo Alto police did not respond to questions about the 2009 case.

It’s difficult to figure out what percentage of federal civil asset forfeiture cases result in a criminal conviction versus those in which people were not ever charged or convicted; the government doesn’t parse its data that way.

But Mica Doctoroff, an ACLU legislative advocate for Northern California, called the James case “a prime example of people not guilty of doing anything wrong getting swept up in asset forfeiture. Some end up in court fighting to get their property back, at great or crippling expense to their families. Others can’t even afford an attorney, or they don’t know how to navigate the legal system. Either way, there are seldom equitable outcomes.”

Still, support for California’s SB 443, sponsored by state Sen. Holly Mitchell (D-Los Angeles) and Assemblyman David Hadley (R-Manhattan Beach) was bipartisan but it wasn’t unanimous.

“My argument is that it’s just as important to take down the small-time dealers as the kingpins,” said Assemblyman Jim Cooper, who vigorously opposed the bill. “I served 30 years in the (Sacramento County) sheriff’s department, and worked 10 years in narcotics and gangs. I spent years undercover, buying drugs from ‘small-time’ dealers. I see what they do. The complaints I get…aren’t about cartel leaders. They’re about the guys that are selling on the street, running crack houses, sapping the life from the community at a neighborhood level. Drug culture and drug trafficking at the street level is also directly linked to domestic violence, human trafficking, and child abuse.”

The only way to hobble drug traffickers, he says, “is to hit them in the pocketbook, and asset forfeiture is the most effective way to do that.”

Civil asset forfeiture has been around since the 17^th Century, when the English Crown, irked that tariffs were being scamped by foreign nations, instituted a convenient legal fiction: Ships and cargo could be held culpable for unpaid tariffs. In other words, if the Italian ship owner couldn’t be thrown in irons because he lived in Genoa, his goods could be adjudged guilty and seized.

But the whole notion got a radical update when the War on Drugs was declared in the 1980s. Even if cases fell apart due to faulty procedures or inadmissible evidence, it was reasoned that significant good was accomplished simply by denying dealers and smugglers money and property. Further, the funds generated from liquidating such assets typically went to law enforcement budgets.

But over time, critics ranging from the conservative Heritage Foundation to the liberal ACLUconcluded that a lot more Jameses were being ensnared than El Chapos or Pablo Escobars.

The advocates highlight a growing roster of cases:

• The immigrant landlord in Anaheim whose modest commercial building was seized because his tenants included not just a dentist and an insurance company, but also a marijuana dispensary.
• The taco truck operator who had $10,000 in cash seized after he was stopped by the Los Angeles sheriff’s department.
• The Los Angeles music promoter who had to battle for the return of $13,000 cash seized in a Shasta County traffic stop—the door receipts from his Mexican music concerts.

In each case, civil forfeiture reform advocates stress, the property owner was not arrested or charged with a crime. Sometimes their property was returned, but only after a costly legal battle.

“Not every cop or agent does it, and we’re not saying that a true criminal should be living off ill-gotten gains,” said San Diego attorney Löan Shillinger. “But the idea that the system can be used to take the property of someone who has not been convicted of a crime is just plain wrong.”

Mitchell, the bill’s sponsor, said she sometimes heard horror stories from her constituents about asset forfeiture, “but for me, the real ah-ha moment was when I was driving my mother to Las Vegas. She likes to gamble, and she’s a little too advanced in years to fly on her own anymore, so I drive her there a couple of times a year. And she’s lucky — somehow, she always seems to win. And I started wondering what would happen if the two of us, two women of color driving in a nice car, got pulled over coming back from Vegas, and one of us, the older lady, had a lot of money on her. How would that play out? And I realized: not well.”

She sponsored an asset forfeiture reform bill last year, but it was vigorously opposed by police and prosecutors and roundly defeated in the Assembly. Unlike SB 443, the earlier bill had no cash benchmark; it required a criminal conviction for any forfeiture of currency or goods. The $40,000 threshold, said Mitchell, seemed to make a difference—but changing public attitudes also played a role.

“Last year…I had lobbyists sitting in my office telling me that reforms would take hundreds of thousands of dollars from police budgets, that the police would be prevented from doing core law enforcement work,” Mitchell said. “I said that they shouldn’t be budgeting with money that wasn’t theirs, and when we had to cut the budgets for K-12, we didn’t start seizing kids’ lunch money.”

Cooper, however, emphasizes that proceeds obtained from forfeitures “don’t just go to law enforcement. They also go to drug prevention and rehab programs, to kids’ programs.

“Sometimes things do go wrong, but the vast numbers of seizures are legitimate,” Cooper continued. “Just as an example, we busted a marijuana grow house once and pursued asset forfeiture. The entire home was fitted out with grow lights. The owners had $100,000 in equity in the house, and they were making huge amounts of money from their pot operation. But on their IRS returns, they claimed they were only making $11,000 a year. So they were degrading the neighborhood and completely avoiding legitimate taxes. And those stories are the norm. This bill gives people like that the green light to continue with that kind of behavior, to keep undermining neighborhoods and committing tax fraud. I’m really worried that we’re throwing the baby out with the bath water here.”

Ventura Police Chief Ken Corney, president of the California Police Chiefs Association, said police worked closely with the bill’s sponsors and that it “strikes a balance.”

“When you’re out there on the dance floor, circumstances sometimes force you to act with decisiveness and conviction,” he said. “There are many times when it may not be possible to apprehend or convict a trafficker. Many would rather abandon their money or property than be held accountable for their acts. So denying them resources can at least inhibit some of their future activities, and helps us keep the pressure on them.”

Besides, he said, people can always go to court to get their property back.

But Shillinger, the San Diego attorney, said that’s hardly an adequate.

“Most of the people who are caught up in this are poor and are often people of color, people who are struggling to get by under the best of circumstances,” she said. “They may not speak English. They’re intimidated by the courts, they often can’t take time off from work to go through lengthy judicial proceedings, and they usually don’t have the wherewithal to hire an attorney. So they tend to just suffer their losses and walk away.

“And the police count on that.”

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