Close the loophole on unjust civil asset forfeiture

This commentary originally appeared in the Sacramento Bee on August 22, 2015.

Traveling with a large amount of cash can be risky in California.

An owner of a food truck from Northern California traveled to Los Angeles to make a large purchase. He had $10,000 in cash with him – not unusual, given that he operated a cash-based business.

Unfortunately, his $10,000 was taken – by law enforcement. His cash was seized at a drug interdiction stop and, while no illegal drugs were found in his vehicle and he wasn’t charged with a crime, his money was taken anyway under a process called civil asset forfeiture.

How can this happen?

The modern era of civil asset forfeiture arrived with the Comprehensive Crime Control Act of 1984. As with most laws, its intentions were good: to allow federal law enforcement to team up with local authorities to share assets seized from criminals. Victims of fraud could see restitution from white-collar criminals and drug dealers could find their entire ill-gotten empires seized. It was a win-win.

Then the iron-clad law of unintended consequences struck. Civil asset forfeiture power incentivizes law enforcement to seize cash because they are allowed to keep some of the proceeds. Since cash is taken in civil actions, with case names such as United States of America v. $124,700 in U.S. Currency, the owners of the cash have to prove they acquired the money by legitimate means to get it back – guilty until proved innocent.

Over time, local law enforcement became increasingly dependent on seized assets to finance special equipment purchases and some really special purchases, such as trips to casinos, Hawaiian jaunts and even a margarita machine – “pennies from heaven” as one police chief in Missouri called it. About $77 million was distributed to California law enforcement agencies through equitable sharing last year.

But laws in California governing civil asset forfeiture are better than in many other states due to a 1994 reform passed and signed into law by former Gov. Pete Wilson, a Republican.

However, a legal sleight of hand called “adoption” allows California’s law enforcement agencies to transfer a civil asset forfeiture case to federal jurisdiction where protections are sorely lacking, thus, bypassing California’s more restrictive laws.

In 2000, California lawmakers voted to restrict the equitable sharing loophole, but then-Gov. Gray Davis vetoed the measure.

Civil asset forfeiture has become particularly lucrative for some jurisdictions, with the Southern California cities of Pomona, Baldwin Park, Beverly Hills and South Gate acquiring more property than California’s largest cities.

To address this growing problem, Sen. Holly Mitchell, D-Los Angeles, introduced Senate Bill 443 with Sen. Joel Anderson, R-San Diego, and Assemblyman David Hadley, R-Manhattan Beach, as co-authors. The bipartisan bill reforms California’s asset forfeiture law by prohibiting transfer of a state forfeiture matter to federal authorities. Further, if defendants manage to get their money back in civil asset forfeiture cases, the proposed law allows for the reimbursement of court expenses – a major barrier for many who calculate that the cost to fight an unjust seizure exceeds the value of the assets taken by government.

SB 443 passed the state Senate in June with only one “no” vote.

Unfortunately, a large roster of California law enforcement groups with a powerful presence in Sacramento have banded together to preserve the status quo that allows them to keep Californians’ cash without a criminal conviction.

Law enforcement agencies say they need the money. If so, the Legislature and local elected officials should prioritize spending for law enforcement.

Justice – fair play – as well as public confidence in law enforcement, is far too important an asset to throw away on continuing cash forfeitures under federal law. SB 443 is worthy of unanimous support in the Legislature.