By Margaret Dooley-Sammuli
Imagine you’re on your way to buy a used car and a police officer pulls you over. After asking you a few questions, the officer asks to search your car. Knowing you’ve done nothing wrong, you agree. The next thing you know, the officer is telling you that he’s suspicious that you have $2,500 in cash – and he takes it. You explain that you’re on your way to buy a car. He doesn’t believe you and tells you that if you want your cash back, you’ll have to fight for it in court.
You might be surprised to learn that the above scenario happens every day in the U.S. What’s worse: it’s perfectly legal. It’s called “civil asset forfeiture.”
If you’re shaking your head wondering how this could be, you’re not alone. In a recent Tulchin Research poll, Californians said they want an end to this practice. When asked whether police should be allowed to take and keep property from people who have not been convicted of a crime, an overwhelming 76 percent said “no.” Support was just as high or higher across political, geographical, and racial/ethnic lines: LA-area Latino Democrats agreed with San Diego Republicans, White Central Valley Independents, and Bay Area African Americans.
It makes sense that Californians want protections put in place against law enforcement seizing property. The practice feels decidedly un-American. So where did it come from? The 40-year-old war on drugs.
Civil asset forfeiture laws were created in the heyday of the drug war in the 1980s. Originally intended to take booty away from drug “kingpins”, civil asset forfeiture has been perverted into an ongoing attack on low-income people and families who can’t afford to fight the government in court.
Despite laws and guidelines intended to protect against it, civil asset forfeiture has become a relied-upon source of funding for law enforcement agencies all across the state. The fact that civil asset forfeiture has become a primary funding source for law enforcement has not only led to greater abuses, but also to an unhealthy and growing overreliance on it. This is well documented.
Fortunately, reform is not only possible, it’s at our fingertips. SB 443 – introduced by Senator Holly Mitchell (D-Los Angeles) and co-authored by Senator Joel Anderson (R-Alpine) and Assembly Member David Hadley (R-Manhattan Beach), among others – will reign in abuses and reestablish the most basic tenets of Constitutional law and values, requiring that someone be convicted of an underlying crime before their cash or property can be permanently taken. SB 443 ensures that California law enforcement and prosecutors will no longer directly profit from cases in which there is no conviction.
SB 443 earned nearly unanimous support in the Senate. Only one Senator voted against the bill: the representative for Pomona, the city with the highest asset forfeiture rates in the state. Now the bill must overcome immense pressure from law enforcement to survive in the Assembly.
Support for SB 443 is broad and overwhelming (including the LA Times and former Republican State Assembly Member Chuck DeVore). Opposition is coming exclusively from the law enforcement agencies and prosecutors that benefit from seized assets. Just like asset forfeiture itself, this feels decidedly un-American.
The protections SB 443 will put in place are needed for all of us, particularly the more vulnerable. Asset forfeiture frequently impacts communities of color, low-income people, noncitizens, and family members of noncitizens, who are often discouraged from fighting for their property because they can’t afford an attorney or because they’re afraid to take on law enforcement. The asset forfeiture process is extremely complicated; without a lawyer, it is nearly impossible to successfully fight against the government to get your property back.
Most forfeiture involves small amounts of money and attorneys frequently tell people that the cost of fighting to get their property back will end up being more than the value of the property itself. The system is stacked against us.
SB 443 will restore the fundamental principle of our justice system that a person should not have his or her property taken away if that person has not first been convicted of a crime.
Margaret Dooley-Sammuli is the ACLU of California’s Director of Criminal Justice & Drug Policy.
I’ve got to believe there’s more to this. For instance, in the scenario above did the officer take the $2500 because he found narcotics in the car? Was stolen property discovered?
“…there’s more to this.”
No, there really isn’t. It is not a crime to carry cash. See comments by PC below.
“Asset seizure laws have been notoriously abused by law enforcement to their own financial benefit.”
civil forfeiture was dreamed up by law enforcement under the guise that people shouldn’t benefit from drug sales. okay makes sense. however, it ends up being property seizures without due process of law. and often they are taking things only tangentially related. the problem is that police departments have come to rely on the income stream from these seizures to fund their operations.
It’s really too bad, because the ACLU used to write thoughtful, reasoned, arguments expressing opposition or support for various elements of social justice issues. Now, as this comedic first-draft soap opera script above shows, the ACLU has really gone, “Hollywood.”
And the biggest shame and irony in this instance is that–had the writer just presented the issue fairly and rationally–the advocacy would have been far more persuasive.
“Power corrupts,” as they say, and so does money. Or at least it can, and any perception of impropriety equates to actual impropriety when it comes to government accepting free money in any fashion. I’ll spare readers a repeat of my “Caesar’s wife” argument but it sure applies here.
This Bill needs to pass into law and probably will. Asset seizure laws have been notoriously abused by law enforcement to their own financial benefit. The disgraceful efforts, blessedly, have been most egregious in other states (one infamous story was where a police chief remodeled his office with asset seizure money), but California has its level of shame as well. Blessedly, again, we in Northern California are less visible in this sordid “equity sharing” deal-with-the-devil arrangement with the federal government. There are at least two cities in Southern California that should be deported to Central America. No matter how you polish it or spin it, any government forfeiture law which translates to direct financial benefit to those charged with seizure powers, is a clean manifestation of conflict of interest.
If you want to see an interesting social and political dynamic, adjust this Bill to provide that all assets realized from asset seizure be fully directed to public work projects in defined impoverished areas. Then, the guy who’s watching drug deals go down across the street will notify the authorities–and get his pot-holed street repaired as a reward to the whole area.
“This Bill needs to pass into law and probably will. Asset seizure laws have been notoriously abused by law enforcement to their own financial benefit. ”
this is the bottom line and i appreciate your candor on this point.
“SB 443 will restore the fundamental principle of our justice system that a person should not have his or her property taken away if that person has not first been convicted of a crime.”
The key here is the person has their assets seized even though they have not yet been convicted of a crime. The person who had their assets seized may be innocent of any wrongdoing, yet the burden is on them to get the money back. But they may not have the wherewithal, either financially, emotionally or educationally to do so.
See:
http://www.npr.org/sections/thetwo-way/2014/11/10/363102433/police-can-seize-and-sell-assets-even-when-the-owner-broke-no-law
http://fee.org/freeman/the-governments-war-on-property/
The IRS engages in the same sort of forfeiture conduct too:
http://www.thenewamerican.com/usnews/constitution/item/19387-irs-can-seize-your-assets-even-if-it-just-suspects-you-committed-a-crime
“The key here is the person has their assets seized even though they have not yet been convicted of a crime. The person who had their assets seized may be innocent of any wrongdoing, yet the burden is on them to get the money back. ”
exactly. and the system is heavily weighted against them.
The entire business of government is funded by asset forfeiture. You make it and they take it.
What would happen if I refused to allow the officer to search the car?
Depends on the officer probably. Technically unless they have probable cause, you can decline a vehicle search.
One additional point for anybody to consider, a point that, fore reasons I’m not aware, has not been raised by those who are especially skilled in all of the nuances of law, at least in any discussions I’ve read:
Asset seizure as spoken here is a civil process. Civil law allows such actions against the assets of persons, and includes such things as wage garnishments, liens against real property, judgments in civil suits, and probably several others. These actions are invoked in court actions, with all the protections against abuse give to us as American citizens.
Civil law and criminal law are two distinct and separate bodies of law, each with its own set of rules, procedures, and differing burdens of proof. Asset seizure is a civil process, but a result of a criminal law suspicion (drug violation). I don’t know of legal precedent where criminal law is the basis for suspicion, and civil law is the rationale for asset seizure.
I would argue that criminal law does not come into play when property is seized prior to detention, since the seizure occurs BEFORE an arrest and merely on “suspicion” of criminal activity. It remains in the civil courts until the person is formally charged. My guess is the forfeiture law involving seizure prior to conviction is unconstitutional (my research seems to bear that out: see https://www.law.cornell.edu/wex/forfeiture ). It is a gov’t taking without due process. But think about it. There are good reasons these forfeiture laws are not being legally challenged enough. The average non-criminal who had their property seized either 1) does not have the fiscal wherewithal to fight the seizure in court; or 2) the amount sued for is less than the cost of litigating the matter; or 3) is worn down by the legal process both financially and emotionally.
Excellent article and good comments. Civil forfeiture is a legal crime that should have ended long ago, and it’s good to see that at least California politicians, for the most part, are waking up to that reality.
As long as prohibition is the law the of the land and it is used to directly enrich those who maintain and enforce it, and as long as our court system is as inefficient and expensive as it is, there can be no honest claim that America is a land of justice.
Civil forfeiture is the kind of legal crime that causes many citizens to continue supporting individual rights under the 2nd amendment, which is clearly not about duck hunting. Oink!