ACLU Urges Sacramento Officials to Defeat Unconstitutional Vehicle Seizure Ordinance

FOR IMMEDIATE RELEASE

SACRAMENTO -- The American Civil Liberties Union of Northern California is urging city officials to reject a proposed ordinance that would allow police to seize, claim and sell the vehicles driven by people accused of using them to solicit prostitution or buy drugs -- even if they are later found innocent.

In a letter sent to Mayor Joe Serna, Jr. and members of the City Council, the ACLU said the asset forfeiture scheme "embodies the most severe and extreme features of forfeiture laws, and is contrary to fundamental principles of fairness and due process."

The ACLU has opposed similar ordinance proposals in Oakland and San Francisco.

"We recognize that prostitution and drug traffic adversely impact local communities and are matters of legitimate governmental concern," said Alan Schlosser, Managing Attorney of the ACLU of Northern California and author of the letter. "However, we urge the Council not to establish a harsh and overbroad local forfeiture operation that places at risk basic individual and property rights."

Those risks, Schlosser said, include:

• Punishment without conviction. Vehicles can be seized and sold without anyone being convicted, or even arrested, for the underlying criminal offense. Even an acquittal of the criminal charge would not result in the return of the vehicle.

• No presumption of innocence. The basic presumption of our justice system -- innocent until proven guilty -- is discarded. Once a vehicle is seized, the owner has the burden of fighting the system to regain his or her property -- a burden which will inevitably fall most harshly on low-income people.

• Punishment of the innocent. Contrary to federal and state forfeiture laws, innocent owners whose vehicles are used for illegal purposes without their knowledge or consent may still lose their vehicles. Thus, a family could lose its only car under such circumstances, even if the vehicle was a necessity for employment or education purposes.

• Cash bounty system. Asset forfeiture is a law enforcement weapon that directly generates revenue for the government, creating a built-in conflict of interest because the proceeds of the forfeiture sale are split between local law enforcement and local prosecutors. The potential for law enforcement abuse is enormous.

The City Council is scheduled to discuss the ordinance tomorrow afternoon.

[Letter follows]

August 5, 1999

Mayor Joe Serna, Jr.
Members of the City Council
City of Sacramento
915 I Street, Room 205
Sacramento, CA 95814

Re: Proposed Vehicle Forfeiture Ordinance

Dear Mayor Serna and Members of the City Council:

On August 10, 1999, the City Council will be considering an ordinance that would authorize the seizure, forfeiture and sale of vehicles used by persons to solicit an act of prostitution or to acquire or attempt to acquire drugs. I am writing again to express the strong opposition of the American Civil Liberties Union of Northern California to this proposal.

The proposed Sacramento Ordinance embodies the most severe and extreme features of forfeiture laws, and is contrary to fundamental principles of fairness and due process in the following respects:

• Punishment without conviction. Under the Ordinance, a vehicle can be seized and sold without anyone being convicted, or even arrested, for the underlying criminal offense. In fact, even an acquittal of the criminal charge would not result in the return of the vehicle.

• No presumption of innocence. The basic presumption of our justice system - innocent until proven guilty- is violated by the Ordinance. Vehicles can be seized without any prior judicial hearing based simply on probable cause, a minimal burden requiring something more than a hunch and far less than what is necessary to prove guilt in a criminal court. Once the vehicle is seized, the vehicle owner has the burden of fighting the system to regain their property, without any of the protections and safeguards available to those accused of even serious crimes. This burden, which will inevitably fall most harshly on low-income persons, would include hiring a lawyer, as the public defender will not represent indigent persons in civil forfeiture proceedings. The procedural unfairness of the Ordinance is vividly illustrated by the provision allowing vehicle owners only ten days with which to file a claim or forever lose their right to contest the seizure. This disregard for the norms of our justice system would continue in the courts, where the traditional requirements of a right to a jury trial and the requirement that the government prove its case beyond a reasonable doubt are thrown out the window.

• Punishment of the innocent. Under both federal and state forfeiture laws, the vehicles of innocent owners whose vehicles are used for illegal purposes without their knowledge or consent are not subject to forfeiture. In Sacramento, such vehicle owners would be out of luck, as there is no such "innocent owner" defense in the Ordinance. Loaning your car to your teenager or your spouse or a friend would be sufficient grounds to be subjected to government confiscation and loss of title if it is used for illegal purposes. Thus, a family could lose its only car under such circumstances, even if the vehicle was a necessity for employment or education purposes. Under state law, the inequities that could arise from such a forfeiture led the State Legislature to provide both an innocent owner defense and an exemption from forfeiture for an innocent spouse if the car is the only one available to a family. The harshness of the Ordinance's approach is exemplified by the absence of any such provisions, thus treating the guilty and the innocent with equal severity.

• Cash Bounty System. The potential for law enforcement abuse of asset forfeiture is not just because of the absence of due process safeguards, but also because it is a law enforcement weapon that directly generates revenue for the government. There is an inherent conflict of interest because the proceeds of the forfeiture sale are split between local law enforcement and local prosecutors. Most persons, and particularly low income persons, will not have the resources to hire a lawyer and contest the seizure of their vehicle under the Ordinance, and thus one can anticipate the practice of offering "out of court" cash settlements in exchange for the return of the vehicle. To innocent owners or those guilty of a first time offense, this cash bounty system will seem very much like legalized extortion.

• Disproportionate punishment. The Ordinance would subject to forfeiture and sale the vehicle of a first time offender who attempted to purchase a $10 bag of marijuana. Recently the District of Columbia Court of Appeal invalidated under the Eighth Amendment the seizure of a truck valued at $15,500 because the underlying criminal offense (soliciting a prostitute) carried a maximum fine of $300. One Toyota Pick-up Truck v. District of Columbia, 718 A. 2d 558 (D.C. 1998). The court's reasoning -- that the forfeiture was "grossly disproportional to the gravity of the [criminal offense]" -- could certainly apply to seizures under the Ordinance, as the maximum fine for the possession of small quantities of marijuana is $100 and no jail time. Health & Safety Code §11357(b).

• Disparate impact on racial minorities. In recent months, the phenomenon of "Driving While Black" has been much in the news; just recently, President Clinton called for a national effort to document the problem of drivers being singled out by law enforcement based on race and ethnicity. Congressperson Henry Hyde, who has introduced the "Civil Asset Forfeiture Reform Act" of 1999 (H.R. 1658), has noted that "government abuse of asset forfeiture discriminates against minority Americans, especially African-Americans and Hispanics." Hyde, Forfeiting Our Property Rights (Cato Institute 1995). In view of this well- documented problem, the City Council should question the appropriateness of adding another weapon to the arsenal of the police that will give them both the discretion and the financial incentive to single out drivers suspected of being involved in minor offenses.

That the Ordinance represents an extreme and unnecessarily harsh approach is further demonstrated by its contrast to the more balanced forfeiture measures adopted by the California Legislature. In the 1993-94 Legislative Session, the Legislature adopted two statutes authorizing seizure of vehicles used to solicit prostitutes and in illegal drug transactions: Assembly Bill 1332 (codified as Vehicle Code §22569.5) and Assembly Bill 114 codified as Health & Saf. Code §§11469-95). The text and legislative history of these two bills plainly show the legislative intent to enact a forfeiture law that would provide law enforcement with an additional tool while at the same time preventing abuses and safeguarding individual and property rights.

The ACLU believes that these two comprehensive statutes have occupied the field of vehicle forfeiture, and thus local ordinances that conflict with these state laws are preempted and invalid under Article XI, §7 of the California Constitution. On this basis we have challenged the Oakland Vehicle Ordinance, upon which the San Francisco proposal is modeled, and which is the first and only local forfeiture ordinance enacted in this state. Our case (Horton v. City of Oakland, No. AO85460) is pending in the California Court of Appeal. We believe that the Court will agree with us that vehicle forfeiture is a matter of statewide concern, and that the rules and procedures cannot be changed each time a car crosses a city line. However, what is certain is that this Council is being asked to act before the courts resolve this unsettled legal issue.

Putting aside the preemption question, the state's forfeiture laws graphically underscore the immoderate and draconian approach to forfeiture that is embodied in the Ordinance. The Ordinance rejects or disregards every feature of state law that attempts to preserve procedural safeguards and fundamental fairness. The most flagrant examples of this conflict with the balanced approach of the state (some of which have been referred to above) are as follows:

1. Under state law, there is a requirement of a conviction of the underlying offense before the vehicle can be forfeited.

2. Under state law, a vehicle used to solicit a prostitute can only be impounded for 48 hours; the Legislature explicitly decided not to authorize vehicle forfeiture for such a minor offense.

3. Under the state's drug asset seizure law, the government must prove its case beyond a reasonable doubt and the vehicle owner has the right to a jury trial. Also, there is an innocent owner defense and a family car exemption. All of these safeguards are ignored by the Ordinance.

4. State law recognizes the severity of the forfeiture sanction by setting threshold minimum amounts of drugs so that vehicle forfeiture is used only against major drug dealers. The Ordinance has no such threshold minimums; if it is enforced like its Oakland counterpart, it will target drivers who buy or attempt to buy $10 bags of marijuana from police undercover officers in sting operations. The irony and unfairness created under this system is worth underscoring. Forfeiture proceedings against a person convicted for major drug sales will take place under the procedural safeguards of state law, while the forfeiture proceeding under the Ordinance for an innocent owner whose vehicle was used to purchase a $10 bag of marijuana would be conducted without these procedural safeguards.

The ACLU recognizes that prostitution and drug traffic adversely impact local communities and are matters of legitimate governmental concern. However, we urge the Council not to establish a harsh and overbroad local forfeiture operation that places at risk basic individual and property rights. Sacramento should not follow Oakland's lead in enacting a law that directly conflicts not only with the measured and balanced approach adopted by the State Legislature, but which is inconsistent with fundamental principles of fairness and due process that are the hallmarks of our system of justice.

Yours truly,

Alan L. Schlosser
Managing Attorney
ACLU of Northern California

cc: Sandra G. Talbott, Deputy City Attorney