OC legislators help secure crucial ‘liberty’ reform
Last September, the state’s most powerful law-enforcement unions and lobbyists descended on the Capitol and derailed a sensible reform measure that had been sailing through the Legislature with little opposition. The bipartisan bill, Senate Bill 443, would have required police agencies to gain a criminal conviction before seizing people’s houses, boats, cars and cash. It was a simple affirmation of the principles embodied in the Fifth Amendment.
“No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.” That’s the operative portion of the amendment. Note that it does not say Americans shall not be deprived of their property unless it puts a crimp in the government’s budget.
Only four Republican Assembly members did the right thing and voted for the bill: Matt Harper of Huntington Beach, Bill Brough of Dana Point, co-author David Hadley of Los Angeles and Brian Maienschein of San Diego. I was particularly harsh toward Republicans in my column, given that Republicans often talk about liberty and the Constitution, so there should be far more than four of them backing asset-forfeiture reform.
Earlier this week, however, the Assembly approved a compromise version of SB443 with the widespread support of Republicans and Democrats. It passed 69-7, with no Republicans voting “no” (although a couple were absent). If Gov. Jerry Brown signs it into law, it will correct a serious injustice. Most of the state’s major law-enforcement groups removed their opposition to the bill, which signifies a heartening willingness for constructive change by that powerful lobby.
In the throes of the Drug War frenzy of the 1980s, the U.S. Justice Department came up with a new tool for fighting drug kingpins. Police and prosecutors would seize the property of people suspected of being involved in the drug trade. It quickly spread to the states. Everyone despises drug kingpins, so it sounded great. But the biggest assaults on our liberties are often proposed as a means to fight some kind of evil.
Because “forfeiture” is a civil rather than “criminal” process, the standards for government takings are weak. Agencies need only allege the property was used in the commission of a crime before taking it. The owner does not get due process, although there is a bureaucratic process for trying to get the property returned. The system created a perverse incentive, because agencies get to keep most of the assets they take.
The result was entirely predictable. Many individuals who were innocent of any crime lost their property, even their life’s savings. Most takings were for under $40,000, so the legal process to get that property back became so costly that many victims were forced to just walk away. Two of the early directors of the DOJ’s asset-forfeiture program complained about the way it corrupted policing in a 2014 Washington Post column. John Yoder and Brad Cates wrote that the system “led to the most extreme abuses: law enforcement efforts based upon what cash and property they could seize to fund themselves, rather than on an even-handed effort to enforce the law.”
Before that September vote, the main opposition argument from law-enforcement groups was about how they would lose a significant portion of their funding. But there needs to be a far better reason to violate the Constitution’s due-process and probable-cause requirements than “the government wants the money!”
Fortunately, the Capitol crowd came to its senses. The compromise version that passed Monday requires law-enforcement agencies simply to get a conviction before taking property in most instances. California police agencies often circumvent the state’s tougher restrictions by partnering with federal agencies and then splitting the proceeds. SB443 bans such “equitable sharing” arrangements unless there’s a conviction first.
The compromise version still lets police seize cash amounts above $40,000 without a conviction, but they cannot take property without a conviction. That’s important. Consider the Anaheim case where the feds tried (before ultimately dropping the case) to take a couple’s $1.5 million building after a tenant (a pot dispensary) was accused of selling $37 in marijuana to an undercover officer.
All O.C. Assembly members voted in favor of the latest bill and Assemblyman Don Wagner, R-Irvine, spoke in favor of it. Maybe the flames of liberty still burn, however softly, in the halls of the Capitol.
