California Passes Asset Forfeiture Reform Bill That Closes Federal Loophole, Adds Conviction Requirement

from the another-win-after-years-of-losses dept

Wed, Oct 5th 2016 2:40pm — Tim Cushing

After years of civil asset forfeiture abuse, legislators are finally fighting back. Reform bills have been offered up all over the country. Unfortunately, very few of them have made it to state governors' desks intact. The DOJ itself has played an integral part in thwarting true forfeiture reform, but legislators are also battling powerful police unions and a law enforcement lobby that needs to do little more than say the words "drug dealer" to convince fence-straddlers to come down on their side.

New Mexico's legislature passed one of the most stringent forfeiture reform bills in the nation, only to see it ignored by local police departments who viewed it as applicable only to state law enforcement agencies. We'll see if the same thing happens in California, where another significant reform bill has just become law. Nick Wing of the Huffington Post reports:

California Gov. Jerry Brown (D) on Thursday signed a bill into law scaling back a controversial practice that allows police in the state to permanently seize people’s cash and property without obtaining a conviction or even charging someone with a crime.

Not only does the law contain a conviction requirement -- something that should greatly reduce the amount of abuse -- but it closes a loophole law enforcement agencies love using to route around state-level restrictions.

Beginning Jan. 1, 2017, police departments in California will be largely prohibited from transferring seized property to federal agencies in order to sidestep state conviction requirements. The legislation forbids the transfer of property, like vehicles and homes, and specifically raises the threshold on cash seizures, requiring the government to obtain a conviction before permanently confiscating any amount under $40,000. (The previous cap was $25,000.) For larger cash seizures, authorities must provide “clear and convincing” evidence of a connection to criminal activity before taking the money for good.

These restrictions should create additional barriers against misuse. High-dollar seizures are the exception, not the rule. Law enforcement agencies don't rake in cash from a few large busts a year. The greatest portion of this "income" derives from dozens or hundreds of smaller seizures. The lower dollar amounts ensure agencies will hold onto more money more often. The cost of challenging a seizure is often more than the amount seized -- a fact many law enforcement officers are all too aware of.

Survey results from the Drug Police Alliance show civil asset forfeiture is fairly widespread, with around 10 percent of residents in a number of California counties reporting that they know someone who’s had property confiscated by police without being convicted of a crime. And forfeiture trends in California don’t appear to have changed much since 1992, when 94 percent of state forfeitures involved seizures of $5,000 or less. Adjusted to 1992 levels, the average value of a forfeiture in California in 2013 was just $5,145.

This law puts some due process back into the forfeiture system, preventing agencies from running a rigged game which pits the government against the property seized and doing everything it can to keep the rightful owner from raising objections.

Of course, law enforcement officials and representatives are already complaining that the bill will turn California into Mexico.

There’s also a broader belief that the new law will encourage the criminal element to do business in California.

“The fact is that when you’re dealing with transnational criminal enterprises, one of the crippling things that you can do is seize their assets out from under them,” said John Lovell, a lobbyist for the California Narcotic Officers’ Association. “And that can be, in many cases, more efficacious than jailing a few members of that cartel.”

Except that years of drug warring and asset forfeiture haven't done anything to reduce the flow of drugs into the country. This fact is conveniently overlooked every time law enforcement agencies try to defend taking a few thousand dollars from a motorist passing through the state. The agencies that benefit from forfeiture have almost no interest in securing convictions -- a much longer, more expensive process that involves making more effort than claiming to smell marijuana before helping themselves to any cash they discover.

Agencies are also complaining about expected budget shortfalls, and without any seeming awareness that this is a mess of their own making. Effective budgets don't allow for highly-speculative projections. Agencies have no way of knowing from year-to-year how much they can truly expect to obtain through asset forfeiture. But they pencil in amounts anyway, turning this amount into a goal to chase, rather than a possible surplus that should only be counted when -- and if -- it actually arrives.

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Filed Under: asset forfeiture, california, civil asset forfeiture, conviction

30 Comments

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That One Guy (profile), 5 Oct 2016 @ 3:11pm

Telling complaints
If a requirement for a conviction or even just charging someone with a crime is going to be any sort of impediment to their 'crime stopping efforts' that says a lot about how they've been working so far, and the mindset they have towards stealing from the public.

If they're really worried about the 'transnational criminal enterprises' then this shouldn't affect them in the slightest, as it should be trivial for them to collect enough evidence for a conviction in order to allow the seizures to go through under the new law. If they don't have enough evidence then they're basically admitting that they're robbing people simply because they think their marks might be criminals.

The only way a requirement for a conviction is a problem is if they have a habit of stealing from people based upon weak or non-existent evidence. This is a solution to a problem that shouldn't even exist, the idea that it's perfectly okay to steal someone's property without first demonstrating their guilt in court is an idea that should have been thrown out the first time someone seriously suggested it, not something that requires specific laws to combat and prohibit.
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Anonymous Coward, 5 Oct 2016 @ 3:13pm

Arizona Law Enforcement
Arizona needs to start arresting and charging the officers involved with the theft of property. It has been specifically ruled to be illegal to seize the property, but they are doing it anyway. Seems to be an open and shut case of theft. Arrest and charge everyone involved with the receipt of goods and proceeds etc.
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Anonymous Coward, 5 Oct 2016 @ 3:51pm

Good luck in getting the cops to abide by that law. They'll still seize it and hope that someone doesn't have the resources to fight the seizure. It looks good on paper, but the reality of the law is far from what's printed on a piece of paper.
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Anonymous Coward, 5 Oct 2016 @ 4:04pm

Bullets Have No Name
Human laws don't matter

Natural laws matter

A bullet in the head will kill you... It makes no difference whether fired by a criminal or the "State"

Natural laws will always exist... Human laws won't
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That One Guy (profile), 5 Oct 2016 @ 4:07pm

Re:
The idea you're describing is 'On paper vs In practice'. Ideally the two will be close if not exactly matching, what's written down is how it's applied, and how it's applied matches what's written down.

Unfortunately... yeah, getting the courts to apply the law rather than give cops a pass, and the fact that if someone wants to contest a robbery at badgepoint they still have to take it up in court which may cost money they simply don't have means this new law may be one of 'looks good on paper, utterly worthless in practice.'

Cops have been robbing people with impunity for far too long to just change overnight, law or no law, so unless they actually suffer should they continue on business as usual I imagine the law won't change much, even if it is welcome as it demonstrates that the problem has been acknowledge as existing and being serious enough to warrant legal action.
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Norahc (profile), 5 Oct 2016 @ 4:35pm

Probably shouldn't give them the idea
Probably shouldn't give the the idea, but I'm willing to bet that California enforcement officers will consider a traffic violation conviction all that is needed to meet this new requirement.

Improper lane change? That's an asset forfeiture.

Speeding? That will cost you your vehicle and all your cash.
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Anonymous Coward, 5 Oct 2016 @ 4:45pm

“The fact is that when you’re dealing with transnational criminal enterprises, one of the crippling things that you can do is seize their assets out from under them,” said John Lovell, a lobbyist for the California Narcotic Officers’ Association. “And that can be, in many cases, more efficacious than jailing a few members of that cartel.”

And what does that have to do with the price of tea in China? ESCROW the assets until conviction.

The cart has leapt over the horse and is galloping down the last furlong to Police Heaven while the worn down old nag is struggling to get out of the stable.
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Padpaw (profile), 5 Oct 2016 @ 4:46pm

criminals rarely follow the law, why would the criminals in blue be any different.
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Padpaw (profile), 5 Oct 2016 @ 4:48pm

Re: Telling complaints
then we have the sad fact that the police have been told they don't have to know the laws to enforce what they think is the law.
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Sambo, 5 Oct 2016 @ 6:48pm

If only
So if law enforcement agencies are so concerned that making the asset forfeiture process legitimate is going to somehow increase drug trafficking, perhaps they could explain how continuing to enable police to steal money and goods from innocent people is going to have a positive impact on reducing the crime rate.
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That One Guy (profile), 5 Oct 2016 @ 7:20pm

Re: If only
1) Crime takes money.

2) People have money.

3) Therefore by robbing innocent people they no longer have the money or property required to commit crime, meaning less crime.

Makes perfect sense really, robbing people = less crime.
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TKnarr (profile), 5 Oct 2016 @ 9:37pm

Re: Re:
Since the law puts in a conviction requirement, it should be a lot easier and cheaper to challenge seizures because it no longer requires argument whether or not you're guilty of the offense in question. Whether you've been convicted or not's a unambiguous question answerable by the record and not requiring any interpretation, so that should leave almost no wiggle room for a judge to find that the cops can keep the money without being able to produce a record of a conviction. It should also make it easier to hold the agencies liable for damages for keeping money absent a conviction, the claim for return of the money's being evaluated at a higher level than the cop on the street and it should be easier to make the case that a DA can't possibly be able to read "only with a conviction" as meaning anything else.
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Anonymous Coward, 5 Oct 2016 @ 11:12pm

Yes we are nation of laws, the only catch is who legislates and enforces the laws and then whom they are enforced upon. Equal treatment under the law? I don't see it, do you?
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Lord Lidl of Cheem (profile), 6 Oct 2016 @ 3:04am

I'd just like to congratulate drugs, for winning the war on drugs.
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Whatever (profile), 6 Oct 2016 @ 3:13am

The net effects are pretty much the same, with a few exceptions:

The police still seize the assets, call them "evidence" and leave the case open. So they end up just holding the money and whatever for as long as they feel the need to investigate. They could slowly, slowly, slowly move a case forward one interview at a time, one review at a time, and spread it literally over years.

True, they may not be able to freely spend the cash for stuff they want, but the person who had the money seized from them will see the same effects. They will have to get a lawyer and go to court and make motions to move the case forward or have it dropped.

Not sure they really fixed anything here.
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Anonymous Coward, 6 Oct 2016 @ 5:23am

The constitution is very clear about the issue of asset forfeiture. The end of the fifth amendment reads

...nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

To cite other parts of the bill of rights, seizing assets is also against the forth amendment, and finding the assets to seize often violates the forth again

The right of the People to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause...

Based on the difficulty of retrieving the property, the sixth amendment is probably being violated as well

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,...

If the property is being seized without people being charged with a crime, then the sixth is not being violated, but that also makes their violations of the forth and fifth worse.

If the assets seized are valuable enough, the eighth might be violated as well

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

I think that it is ridiculous that not only are laws explicitly forbidding this necessary, but also that even those laws are not being that effective.
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DannyB (profile), 6 Oct 2016 @ 6:10am

Conviction Requirement is a huge step forward
Police cannot merely seize assets because the assets are 'guilty'.

Now the assets must be convicted to remain seized. The assets do not need to assist in their own defense.
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Anonymous Coward, 6 Oct 2016 @ 6:11am

"closes a loophole law enforcement agencies love using to route around state-level restrictions. "

I thought state level laws over ride local/municipal laws, that is what they are saying about the anti-anti-fracking laws being pushed in many states. Double standard? Hypocrites? Yup. My way or the highway - blah blah blah
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DannyB (profile), 6 Oct 2016 @ 6:12am

Re: Re: Telling complaints
Why would you burden police with having to know all those complex laws?

Don't you think it is difficult enough to keep track of the combinations of donut types, fillings and toppings?
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Anonymous Coward, 6 Oct 2016 @ 6:13am

Re: Conviction Requirement is a huge step forward
Those assets will be provided the same public defense provided to all those unable to afford their own attorneys ... that being none, as in nothing other than a plea bargain.
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Anonymous Coward, 6 Oct 2016 @ 6:54am

Re: Re: Re: Telling complaints
Also, without all those seizures, how does one expect the police to be able to pay for all their doughnuts?
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Anonymous Anonymous Coward (profile), 6 Oct 2016 @ 8:41am

Re: Conviction Requirement is a huge step forward
That kind of thinking will only lead to prosecutors having the assets interviewed by a team of psychiatrists who, after extensive verbiage (a.k.a. psychobabble), will declare the assets competent to stand trial, they just decided to remain mute.
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Anonymous Coward, 6 Oct 2016 @ 10:41am

Re:
"Not sure they really fixed anything here."

"True, they may not be able to freely spend the cash for stuff they want"

You gave us the answer, then asked the question. I don't understand your post at all.

The point of the legislation is to prevent abuse, not keep the police from preserving evidence. If it's evidence, then it needs to follow the rules of evidence right? It sits until trial in a evidence locker somewhere. If convinced, the court will decide what happens too it. If found innocent, the evidence is returned to the defendant.

It forces the police to bring a case against the person and not the property itself right? At least that's what I take away from the story.
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Anonymous Coward, 6 Oct 2016 @ 10:42am

Re: Re: Re: Re: Telling complaints
the budget shortfalls won't hit the donut fund. they'll probably buy chinese guns, armor, and uniforms before losing the donuts
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Whatever (profile), 6 Oct 2016 @ 1:39pm

Re: Re:
MY point was while they could not freely spend the cash (and other assets) they can just hold it forever as "evidence in an investigation" and just not have to investigate anything.

The effects for the citizens involved would be the same - money and other assets gone for a very long time, and the same process of filing to try to get them back.
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Kronomex, 6 Oct 2016 @ 3:41pm

I can see an awful lot of "convictions" looming in California.
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Anonymous Coward, 6 Oct 2016 @ 4:28pm

Re: Re: Re:
"MY point was while they could not freely spend the cash (and other assets) they can just hold it forever as "evidence in an investigation" and just not have to investigate anything. "

I don't deny the effects for the citizens would be the same, but I guess I'm missing the motivation part. Why would the cops bother if they can't keep or use the money? I hardly think they would go through all that trouble if they don't get to keep it. What, are they going to seize the money and stick it in an evidence locker and spend years investigating someone? The average amount taken is around 5K. Hardly seems worth it to me.
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Atkray (profile), 6 Oct 2016 @ 9:04pm

Re: Re: Re: Re: Re: Telling complaints
No, they'll get federal "surplus" gear. Where the budget axe will hit hardest is body/dash cameras and FOIA requests.
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Anonymous Coward, 12 Oct 2016 @ 9:54am

This is scary. Facing this kind of issue i would quickly call my doctor to be on the safe side http://www.mccarthylawyer.com/about-us
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Anonymous Coward, 13 Oct 2016 @ 12:32am

Re: Re: Re: Re:
"I don't deny the effects for the citizens would be the same, but I guess I'm missing the motivation part. Why would the cops bother if they can't keep or use the money?"

Because Whatever is an idiot. That's all you need to know.
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