Asset Seizure Laws: A Civil Liberties Casualty of the War on Drugs

October 27, 2000 by Alan Schlosser,

While recognizing the complexities of developing a national drug policy, the American Civil Liberties Union has consistently maintained that civil liberties and civil rights have been a primary casualty of the so-called War on Drugs. One of the principal weapons employed in this war has been the expansive and zealous use of civil asset forfeiture to administer swift and substantial punishment on those accused of criminal activity, without affording defendants and property owners the procedural protections and safeguards that are integral to our criminal justice system. The ACLU has not been alone in recognizing the abuses and excess associated with asset forfeiture. A bipartisan coalition in Congress recently enacted the Civil Asset Forfeiture Reform Act of 2000, which narrowed the scope of federal forfeiture laws and provided property owners with procedural protections and defenses. The bill's author, conservative Congressman Henry Hyde, made clear the basis for this legislative action: "Enlisted 25 years ago as a legitimate auxiliary tool in the so-called war on drugs, the legal doctrines of civil asset forfeiture have since been perverted to serve an entirely improper function in our democratic system of government -official confiscation from innocent citizens of their money and property with little or no due process of law or judicial protection."

In spite of the growing recognition of the potential for abuse of this law enforcement weapon, some California cities decided to bring the war home by adopting their own municipal forfeiture operations. Oakland adopted a vehicle forfeiture ordinance in 1997 that authorized the seizure and forfeiture of vehicles involved in soliciting prostitution or acquiring drugs. Sacramento adopted a similar ordinance. In San Francisco, a more limited version of the Oakland ordinance was resoundingly defeated last month by the Board of Supervisors, a majority of whom felt that asset forfeiture was fundamentally at variance with basic civil liberties protections. Other cities and counties will be debating this issue in the months ahead.

Local forfeiture operations such as Oakland's are contrary to basic principles of due process and fundamental fairness, in the following ways:

• 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, the eventual dismissal or even acquittal of the criminal charge does not result in the return of the vehicle. 
• No presumption of innocence. The bedrock principle of our justice system -- that persons accused of crime are innocent until proven guilty -- is violated by this Ordinance. If you are accused of buying drugs or soliciting a prostitute, your car can be seized by the police without a warrant or any prior judicial hearing. Once your car is seized, the burden is on the owner to get back the car back, even if the owner had no knowledge that it was used for illegal activity. 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 that the government prove its case beyond a reasonable doubt are denied under the Ordinance. 
• Punishment of the innocent. Under federal and state forfeiture laws, the vehicles of innocent owners that are used for illegal purposes without their knowledge or consent are not subject to forfeiture. In Oakland, there is no such "innocent owner" defense. Loaning your car to your teenager or your spouse is sufficient grounds to be subjected to government confiscation and loss of title if it is used for illegal purposes. A family could lose its only car, even if it were needed for transportation to school or jobs. 
• Disproportionate punishment. The United States Supreme Court has held that the Eighth Amendment's prohibition against excessive fines applies to civil forfeitures where the property forfeited is grossly disproportional to the gravity of the offense. The forfeiture of a vehicle based on the purchase of a small amount of marijuana (an offense with a maximum fine of $100) constitutes disproportionate punishment, particularly if the vehicle owner was innocent of any involvement in the illegal activity. 
• Conflict with state law. The California Legislature recognized that forfeiture laws can have a "harsh effect on property owners" (Health & Saf. Code, sec 11469(j)) and passed a law requiring a conviction for the underlying offense. State law also provides a defense for innocent owners and an exemption if the vehicle is a family's only car. As all of these protections are disregarded in the Oakland Ordinance, the ACLU brought a facial challenge to the ordinance arguing that it is in conflict with, and therefore preempted by, state law. The Court of Appeal rejected this argument, ruling that Oakland was entitled to adopt its broader forfeiture scheme (Horton v. Oakland, 82 Cal. App. 4th 580 (2000).

The irresistible attraction of forfeiture as a law enforcement weapon is that it provides an end run around the procedural safeguards of the criminal justice system. Thus, it is not surprising that police and prosecutors will - as they have in Oakland - choose to punish persons accused of these offenses by forfeiting their property rather than through the criminal courts. The basic unfairness is heightened by one overwhelming practical reality - very few vehicle owners whose cars have been seized will have an attorney to represent them. Indigent persons will not be entitled to a public defender in a proceeding labeled "civil," and in most cases a retained attorney will cost more than the property is worth. Thus, very few people will be in a position to contest a forfeiture in court and raise their innocent owner defense or their disproportionate punishment claim.

Furthermore, the absence of representation means that the implementation of the forfeiture system will take place without the public scrutiny that comes from court review. This is a real problem for a law that is implemented by the police setting up sting operations where police officers pose as prostitutes and drug dealers to attract motorists, and where the proceeds from the forfeiture sale go directly to the coffers of the police and prosecutors. Abusive enforcement of the law - such as illegal entrapment or racial profiling - will take place out of sight, given the practical impediments to contesting a forfeiture in court. This direct link between the absence of representation and the potential for abuses in forfeiture laws was recently recognized by Congress in the Reform Act of 2000, which authorizes appointment of counsel for those who cannot afford representation.

Unless other cities follow the principled example of the San Francisco Board of Supervisors, we are likely to see a balkanized forfeiture system in this state, with different communities competing to establish their own forfeiture operations, prompted by political pressures and the lure of revenue is generated from forfeiture sales.

The key question that is raised by such ordinances is not whether there should be a vigorous and effective law enforcement response to the street crime that blights local neighborhoods. The question is whether the problems justify discarding fundamental protections for individual and property rights. The ACLU hopes the answer, whether it comes from the courts or from elected representatives, is no.

Alan Schlosser is the Managing Attorney of the ACLU of Northern California.