In 2014, Michael Joseph Rodriguez filed a claim in Santa Barbara County Superior Court opposing the seizure of $665 that police found in his pocket as they arrested him on suspicion of selling drugs, according to court records.
He wasn’t yet convicted of a crime, but his money was taken anyway. So, if he was merely accused of wrongdoing, then why was his money taken? It’s called civil asset forfeiture and it allows law enforcement agencies to seize property—often cash—from people if officers suspect it was acquired through means of illegal activity. And despite some opposition, the practice will be allowed to continue after the recent defeat of a bill introduced to reform the practice.
Often dubbed “policing for profit,” the proceeds of the seized property are divided between government agencies, with the police often receiving the biggest share, which they can use to buy more equipment.
Rooted in law, it’s a decades-old practice that exploded in the U.S. during Reagan’s era of the War on Drugs.
The practice is controversial because property can be taken without a conviction. Many want the practice reformed, if not entirely eliminated. California Sen. Holly Mitchell (D-Los Angeles) introduced SB 443, which would’ve required a criminal conviction on a narcotics sale before law enforcement can even request a seizure.
The bill was passed in the Senate on a 38-1 vote, but was defeated in the Assembly not long after—on Sept. 10—by a vote of 24-41. SB 443 didn’t sit too well with several groups, particularly the California District Attorney’s Association (CDAA)—a nonprofit group comprised of all 58 state district attorneys, which unanimously opposed the bill because, among other reasons, it would’ve eliminated a stream of hundreds of millions of dollars of funds stemming from seized assets that would go directly to California police agencies, according to a letter to Sen. Miller from Sean Hoffman, director of legislation for CDAA.
The CDAA actually gets a small cut from assets seized within the state by local authorities. In 2013, the CDAA received one hundredth of some seized assets from all counties—nearly $6,000 from Santa Barbara County alone—according to numbers compiled from a civil asset forfeiture report published annually by the California attorney general. Police keep the majority, up to 65 percent, with a portion going toward drug and gang prevention programs.
Other than the CDAA, the California State Sheriffs Association and the California Police Chiefs Associations also opposed the bill.
Santa Barbara County Senior District Attorney Lee Carter was asked by the CDAA to provide his expertise on evaluating the language of SB 443 and to testify about some of the potential problems it could cause.
One of the problems, according to Carter, was that California law enforcement agencies would be ineligible to receive direct funds from the U.S. Treasury’s equitable sharing program. In joint investigations involving the feds, local police can receive proceeds from seized assets in proportion to their participation.
Instead, the bill would have sent the payments to the state treasury and distributed the money in proportion to population, according to a July 29 email sent to Carter from U.S. Treasury Attorney Melissa Nasrah.
This would have amounted to a loss of $100 million (2014 figures) for law enforcement agencies in the state, according to Carter.
“The senator was trying to shut down federal forfeitures by shutting down all state forfeitures,” Carter told the Sun. “We were trying to be reasonable.”
Compared to other states, according to Carter, California has better protections against civil asset forfeiture. For instance, seized property such as automobiles or houses cannot be put directly into use by police agencies and must first be sold at auction for fair market value.
Accountability measures were put into place in 1994 when the state mandated that the Office of the Attorney General publish an annual report of statewide forfeiture actions, along with the value of seized assets.
Also, Carter said that California law enforcement agencies use a higher standard of proof to seize assets.
Only probable cause is needed to seize property, but it’s Carter’s job to make sure that police are doing it the right way. Carter chairs the asset forfeiture committee in the CDAA and is responsible for training state law enforcement officers and prosecutors in the ethical prosecution of state asset forfeiture cases. Carter added that the CDAA’s cut of seized assets is used strictly for the training of “ethical” asset forfeiture.
“We don’t really seize houses, but the equity in the house,” Carter told the Sun. “We can put a lien against the house, and we won’t even do that unless there’s evidence we need to do that.
“We’re not going to kick somebody out on the street,” he added. “We don’t do that. That’s the whole point of the ethical training we do.”
Police are required to provide suspects with the necessary forms for getting their property back. This process can be long and costly, Carter said, adding that it’s also his responsibility to make sure the juice is worth the squeeze.
In the case of Michael Joseph Rodriguez, it was too costly for the district attorney’s office to fight to keep $665. Instead, Carter settled with Rodriguez and gave half of it back. According to Carter, last year the total amount seized in the county was just over $300,000, while only $18,000 was given back.
The practice underwent changes on the federal level too. In 2000, Congress passed the Civil Asset Forfeiture Reform Act, which gave individuals more protections against asset forfeiture and upped the standard of proof.
But the law’s been criticized for not going far enough. A 2015 report by the Los Angeles office of the Drug Policy Alliance identified several problems with civil asset forfeiture in California, the core of which was the lack of due process and presumption of innocence. The report also found that California police agencies—mostly in the LA region—were pursuing federal forfeitures to skirt California’s protections. The amount of seized assets increased six-fold—from
$700 million to $4.7 billion—in the 12 years following the law’s passage, the report noted.
And the practice remains unpopular in residents’ eyes. According to an August 2015 YouGov/Huffington Post poll, 71 percent of Americans oppose civil asset forfeiture. However, in the same poll, only 28 percent said they’d ever heard of the practice.
Staff Writer David Minsky can be reached at dminsky@santamariasun.com.
This article appears in Oct 8-15, 2015.