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.