Pubdate: Wed, 13 May 2015
Source: Reporter, The (Vacaville, CA)
Copyright: 2015 The Reporter
Contact:  http://www.thereporter.com/
Details: http://www.mapinc.org/media/472
Author: Brian Thiemer
Note: The author, a Fairfield resident, chairs the Solano County 
Libertarian Party.

CALIFORNIA BEHIND THE CURVE ON CIVIL ASSET FORFEITURE REFORM

Last month, New Mexico approved a bill banning the law-enforcement 
procedure allowing the seizure and sale of property alleged to have 
been used for criminal activities, where the property owners are not 
convicted or even charged with a crime, commonly known as civil asset 
forfeiture. The bill, HB560, requires a criminal conviction before 
property can be forfeited to the state, and passed both chambers with 
robust support from both Democrats and Republicans. Additionally, any 
proceeds from actual criminal convictions would be transferred to the 
state's general fund.

Civil forfeiture (different than criminal forfeiture) ignores the 
principle of innocent until proven guilty. Once property is taken, 
it's up to the owner to prove that the property was not used in, or 
acquired with, criminal activity in order to get it back in expensive 
litigation with the government.

A notable asset forfeiture case happened in Southern California, 
where the federal government and the city of Anaheim sought to seize 
a building housing two medical marijuana dispensaries. Although state 
regulated marijuana use is legal in California, city police partnered 
with federal law enforcement to seize the building (since marijuana 
use is still prohibited under federal law). The owner of the property 
was never charged with a criminal offense; his only involvement was 
that he leased part of the building to parties engaged in activities 
legal under state law.

Civil forfeiture cases occur throughout Solano County, including 
Vallejo, Fairfield, and Vacaville, and many are still in play. In 
2013, Vallejo had a flurry of criminal cases regarding medical 
marijuana dispensaries. Eventually all criminal cases related to the 
dispensaries were eventually dropped, but one citizen's assets were 
still kept. The accused (and dare I say "victim") submitted asset 
forfeiture claims early on to have his possessions returned, but they 
were denied.

In December of last year, a person in Fairfield had more than $28,000 
in cash in his car when stopped by law enforcement. Police found a 
drug pipe in his backpack and some related drugs. The District 
Attorney's Office believes the cash was proceeds from narcotics 
trafficking and should be forfeited, when the primary evidence is 
possession of drug paraphernalia. Is this the intended spirit of the 
law and justice system?

While it may be easy to look the other way and assume the people 
probably deserve it, someday it could be you having to defend your 
property. Someone having lots of cash in bad neighborhood may be 
guilty of bad judgment, but it is not criminally illegal.

In asset forfeiture cases, how are citizens better off? If the 
accused (but not charged) is really so bad that they deserve to have 
their stuff taken, why aren't they arrested and charged in criminal 
court? Why are they still loose? Law abiding citizens are not better 
off, the alleged bad guy is still out and about, but is missing 
property, so he/she is motivated to make that up - somehow - and the 
system now has a bunch of extra money. One out of three parties is 
better off, and it isn't the law abiding citizens.

Does civil forfeiture conflict with any Constitutional violations? 
How about the Fourth Amendment right to be free of "unreasonable 
searches and seizures" or the Fifth Amendment guarantee that no one 
will be "deprived of life liberty or property without due process of 
law"? We can even cite the Eighth Amendment ban on excessive fines, 
even if the owner of the accused property is found guilty of some 
criminal offense.

New Mexico's bill is state-level reform, but bipartisan legislation 
has already been introduced in both houses of Congress to reform 
federal civil asset forfeiture laws. HB 560 is similar to the Fifth 
Amendment Integrity Restoration (FAIR) Act introduced in the Senate, 
while an almost identical version has been introduced in the House of 
Representatives. The act would, among many policies, allow people to 
challenge seizures within 14 days, placing the burden of proof on the 
government, to ensure that innocent people have their day in court.

California, who champions itself a leader on issues, has been 
disappointingly behind the curve in passing civil asset forfeiture 
legislation. Ending the questionable tactic of civil forfeiture, one 
that assumes property can be responsible for a crime, and focusing on 
criminal forfeiture, is a step in the right direction in maintaining 
the rights of citizens in California and the rest of the country.
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MAP posted-by: Jay Bergstrom