Newsgroups: misc.legal
From: [h--le--n] at [hprpcd.rose.hp.com] (Helen Nusbaum)
Subject: Asset Forfeiture in California
Date: Mon, 26 Jul 1993 21:52:23 GMT


            Asset Forfeiture in California: An Invitation To Abuse
                      Copyright 1993 By Steven Meinrath*

          An obscure law, unknown to most Californians, is at the center of
     a growing controversy in the State Legislature.  Civil asset forfeiture
     is the process by which law enforcement agencies throughout California
     are permitted to seize property which they believe was obtained with
     the proceeds of drug sales or was somehow used to facilitate a
     drug-related offense.  Additionally, the agency which seizes the
     property gets to keep all or most of the proceeds.  As a result, many
     law enforcement agencies have been raising substantial sums of money by
     seizing money and property from private citizens.  What's wrong with
     that?  After all, they're just taking the profits from dope-dealers,
     right?  The problem is, while this gives financially strapped local
     police agencies a tremendous incentive to seize property, under the law
     as it stands today, the government does not have to so much as charge
     you with committing a crime, much less obtain a conviction, before your
     local police department can take your home, your car, literally every
     dime you own and keep it for its own use.

          This practice has become quite lucrative indeed for agencies who
     have learned how to use it.  Since the law went into effect in 1988
     over $150 million worth of property has been seized.  And law
     enforcement agencies throughout the state are lobbying hard to expand
     the law to allow for more seizures.

          On November 5, 1992, the Assembly Committee on Public Safety held
     an interim hearing on the issue of asset forfeiture.  The current asset
     forfeiture law will expire on January 1, 1994, unless the legislature
     votes to continue it or replaces it with new legislation.  Law
     enforcement agencies, not surprisingly, lobbied the committee heavily
     for passage of an expanded forfeiture statute.  What was surprising,
     however, was the breadth of opposition to the asset forfeiture law.
     Representatives from the California Restaurant Association, the
     Building Owners and Managers, the California Association of Realtors
     and the California Financial Services Association each expressed their
     concern that asset forfeiture threatens innocent landowners.

          The law enforcement representatives present downplayed concerns
     that innocent owners are being effected.  However, a recent decision
     from the Third District Court of Appeal indicates that at least some
     law enforcement agencies are more concerned with holding on to the
     profits from the seized property than learning whether or not the owner
     was involved in any illegal activity.  (See Nasir v. Sacramento County
     Office of the District Attorney (1992) 11 Cal.App.4th 976.)

          Mr. Nasir's troubles began when his adult son drove Mr.  Nasir's
     Chevrolet S-10 Blazer from Los Angeles to Sacramento.  In Sacramento
     Mr. Nasir's son was arrested on charges related to transporting
     marijuana and cocaine.  In addition to arresting his son, the police
     seized Mr. Nasir's Blazer.  At no time did anyone allege that Mr. Nasir
     did anything illegal or knew about any illegal activity by his son or
     anyone else.

          Mr. Nasir soon received a certified letter from the Sacramento
     County District Attorney's Office informing him that, "procedures to
     forfeit this property without judicial proceedings are under way."  The
     letter further informed him that, if he wanted to claim any interest in
     the vehicle, he had 10 days in which to file a verified claim.  Of
     course, like most people, Mr.  Nasir had no idea how to go about doing
     this.  Advised by his son's attorney to call the Sacramento County
     superior court, Mr. Nasir was told by the superior court clerk's office
     that he would have to go personally to the Sacramento County courthouse
     to obtain the necessary form.  When he told the clerk he lived in Los
     Angeles, the clerk said there was nothing she could do to help him.

          After making numerous inquiries, Mr. Nasir eventually got ahold of
     the necessary form and filed his claim.  It was, alas, filed on the
     eleventh day, one day late.  The district attorney wasted no time in
     informing Mr. Nasir that his vehicle had been forfeit.  Despite Mr.
     Nasir's efforts to convince the District Attorney to consider his
     claim, the prosecutor said the claim was untimely and that was that.
     The vehicle was to be administratively forfeit, that is, without so
     much as a hearing on whether or not Mr. Nasir was an innocent owner.

          Thankfully for Mr. Nasir, the District Attorney's heavy- handed
     tactics were not well-received in the Court of Appeal.  The Court held
     that the letter the District Attorney sent to Mr.  Nasir was defective,
     among other things, because it did not adequately inform him of how to
     file a claim asserting that he was an innocent owner.  In its decision
     the Court characterized administrative forfeiture proceedings as, "the
     most Draconian part of the harshest of all our laws respecting the
     private ownership of personal property."  (Nasir, supra, 11 Cal.App.4th
     at 985.)

          The District Attorney's attitude toward Mr. Nasir may not come as
     a surprise to anyone who has ever had to deal with a government
     prosecutor.  But the argument made by the prosecution in the Court of
     Appeal is truly worthy of reflection by those who say abuses of the
     power to forfeit have only been "anecdotal" and California's asset
     forfeiture law poses no real threat to innocent property owners.  The
     District Attorney, represented by the state Attorney General's office,
     argued to the Court of Appeal that, regardless of whether they acted
     illegally in seizing Mr. Nasir's vehicle, the Court had no power to do
     anything about it because the District Attorney had already disposed of
     the Chevy.  This is like a burglar telling the judge, "you can't charge
     me with burglary because I've already sold the loot."

          In response to the prosecutor's argument on appeal, the Court had
     this to say,

          "The district attorney essentially asserts that [Mr.  Nasir]
          should be deprived of a forfeiture hearing on the merits
          because [the district attorney] wrongfully disposed of [Mr.
          Nasir's] vehicle while wrongfully refusing to accord [Mr.
          Nasir] a hearing on the merits.  Such a
          two-wrongs-make-a-right attempt to defeat a hearing on the
          merits obviously is not favored in the law and must be
          rejected."  (Nasir, supra, 11 Cal.App.4th at 992.)

          Of course for every Mr. Nasir, there are a lot of people who lack
     the tenacity and finances to take their case all the way to the Court
     of Appeal to get their wrongfully seized property back.  Most people in
     this situation will simply be bullied by law enforcement agencies into
     giving up their property.  The Nasir case demonstrates that some law
     enforcement agencies, including the Attorney General's office, have
     become so blinded by the cash rewards at stake they have the nerve to
     argue to the Court of Appeal that they can violate the law with
     impunity.  By offering law enforcement agencies the rewards of their
     seizures and not requiring that the property owner be found guilty of
     any crime, California's asset forfeiture law invites this sort of abuse
     of power.  So much for protecting the rights of innocent owners.


     *Steven Meinrath is an attorney in Sacramento, California.  If you are
     concerned about asset forfeiture in California, call or write your
     state legislator today.