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.
Law enforcement agencies in California and around the nation have come under fire for using a process known as civil asset forfeiture to pad their budgets on the backs of innocent civilians they suspect of being involved in criminal activity. Taking advantage of lax standards in civil proceedings, police routinely strip owners of their property and funnel the proceeds into department coffers.
Authorities typically don’t have to provide evidence of the alleged wrongdoing. In many cases, owners are forced to fight costly legal battles to prove their innocence and reclaim their property, thereby inverting the American legal principle of “innocent until proven guilty.”
Existing California law had limited this process, requiring authorities in most state cases to convict a defendant before proceeding with civil asset forfeiture. But California cops were able to circumvent state law thanks to a federal program known as equitable sharing. By collaborating with federal authorities, state agencies made their seizures subject to more lenient federal statutes, while also giving themselves a larger portion of the resulting funds. This practice brought hundreds of millions of dollars in revenue to California law enforcement between 2000 and 2013.
The new law, SB 443, closes this loophole. 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 measures will address the most prominent and troubling abuses of the civil forfeiture process, said the bill’s sponsor, state Sen. Holly Mitchell (D).
“The people I was worried about were like you and me, who for whatever reason ― and it is our absolute right ― drive down the street with cash in their car,” she told The Huffington Post. “A lion’s share of Californians who have been victimized historically would have been covered under this $40,000 cap.”
Indeed, the average value of a forfeiture in California was $8,542.50 in 2013, according to a recent report by the Drug Policy Alliance, a progressive advocacy group. Although police regularly point to huge cash seizures as proof they’re using civil asset forfeiture to disrupt drug organizations that may not be transporting money and contraband together, the data suggests plenty of innocent people are getting hurt by the supposed interdiction tactic.
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.
A recent ACLU report cites cases of cops seizing amounts of just a few thousand dollars from motorists, for example. Furthermore, civil forfeiture activity in California has disproportionately targeted minorities, the poor and non-English speakers who are likely to have trouble navigating the complex legal system to challenge seizures. The ACLU found that 85 percent of forfeiture proceeds channeled to local law enforcement through the federal process goes to agencies that police communities made up primarily of people of color.
SB 443’s success is the latest notch in the belt for civil forfeiture reform advocates. Opponents of the law enforcement tactic have ramped up their campaign in recent years, charging that the practice incentivizes policing for profit, which leads officers to prioritize seizures that benefit their departments rather than focus on upholding public safety.
With the help of a diverse coalition of organizations from across the political spectrum, groups like the Institute for Justice, a libertarian public interest law firm that had previously given California’s civil forfeiture laws a C+ grade, have helped usher through similar reform efforts in Florida, New Mexico, Montana and Maryland.
““The fact that you have groups from all sides of the political spectrum is a signal to both Democrats and Republicans that this is a winning issue.””
Critics of civil asset forfeiture see a fundamental problem with the system because it allows the government to confiscate people’s assets without due process.
That basic constitutional conflict, along with concerns about the corruptive influence of civil forfeiture on policing, have helped make reform ― once primarily a niche cause championed by libertarian think tanks ― an increasingly bipartisan issue.
“Democrats are stepping up and realizing that they can make these changes without being perceived as soft on crime,” said Lee McGrath, legislative counsel for the Institute for Justice. “The fact that you have groups from all sides of the political spectrum is a signal to both Democrats and Republicans that this is a winning issue.”
Still, some proponents of reform are willing to admit the new law isn’t perfect. Many say ideal legislation would eliminate civil forfeiture entirely and tie the process exclusively to criminal proceedings.
“The person is arrested and convicted, and as part of the sentence they lose the proceeds of the crime,” said Theshia Naidoo, legal director of criminal justice at the Drug Policy Alliance, which supported SB 443. “At that point you’ve gone through the entire criminal process. Their due process rights are upheld, they get the right to counsel, there’s a higher standard of proof for the government.”
But the most vocal opposition to reform has come from groups that use civil asset forfeiture, and therefore benefit from it as well.
Organizations like the California Narcotic Officers’ Association objected to the fact that SB 433 didn’t include language regarding cash equivalents, which they said could make it harder for cops to target emerging currency, like Bitcoin. The group wanted the bill to be put off until next legislative session, when the text could be amended.
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.”
Aggressive lobbying by law enforcement organizations helped kill a similar bill last year. It was different this time around, as supporters were able to neutralize many of the opposition’s concerns through cooperation and good-faith negotiating.
Mitchell said she was pleased with this progress, and relieved that law enforcement didn’t resort to the extreme tactics they’ve employed in other states while attempting to preserve the existing civil asset forfeiture system. But she was prepared for a more contentious fight ― and concerned that police might be looking for ways to embarrass her and her family.
“I’m not going to be bullied, and I think that I have a bit of a reputation to that end,” she said. “But it was clear that they were mad as hell, and I had a conversation with my family and told them this would not be the time [for them to get in trouble].”
Police organizations have also raised questions about how the new law will affect funding for agencies, especially amid larger budget shortfalls. Supporters of SB 443 say those concerns are legitimate, which is why the law calls for the Legislative Analyst’s Office to provide a report by the end of 2019 to examine how the bill affects the finances of departments around the state.
While critics of civil asset forfeiture agree that law enforcement needs to be adequately funded, they say equally troubling are reports that some California police departments appear to have built future forfeiture revenue into their budgets ― a practice the federal government explicitly forbids.
“Law enforcement should not be dependent on a source of revenue that is speculative ― you don’t know from year to year how many forfeitures you’re going to have ― but also incentivizes forfeitures to meet certain revenue projections,” said Naidoo.
Bolstered by the success of SB 443, Mitchell says she’s confident that conversations around police accountability and criminal justice reform will continue to be productive, especially as coalitions become broader and more diverse. What she finds most puzzling, however, is the fact that this specific piece of legislation was ever controversial in the first place.
“What I was asking was for California public servants ― law enforcement who take an oath to serve and protect, whose budgets and salaries and pensions are paid by California taxpayers ― to follow California law,” Mitchell said. “That wasn’t a stretch in my mind.”
CORRECTION: A previous version of this article cited vehicles as an example of “real property,” a legal term that refers principally to land.