It Could Soon Be Much Harder For Police To Seize Defendants' Assets In California

The bill aims to stop police from taking assets and profiting from suspected criminals before a criminal conviction is obtained.

California state legislators have passed a new civil asset forfeiture law aimed at curbing law enforcement from taking and keeping the property of suspected criminals during investigations.

Under the bill, in federal cases, state and local law enforcement agencies can only receive a share of forfeited property if they obtain a conviction, or if the forfeited property is $40,000 or more in cash. Cash amounts under $40,000 will require a conviction, as will vehicles, boats, homes, and other types of personal property regardless of value.

In state cases, cash under $40,000 may be forfeited if there is an conviction — an increase from the current $25,000. And assets like boats, vehicles, and homes will still require a conviction, regardless of value.

The details of the bill were amended this summer after an earlier version was voted down on the Assembly floor, 24-41. That version called for a conviction to be necessary in all cases before law enforcement could keep a defendant's assets.

SB 443 has been opposed by law enforcement groups around the state who argue that it will hinder their ability to combat lucrative drug cartels by seizing their assets and hurting their bottom lines. Those groups said it would cost law enforcement $80 million a year in revenue.

In an interview earlier this year, State Senator Holly J. Mitchell (D-Los Angeles), the author of the legislation, told BuzzFeed News that she disagrees with the contention that law enforcement needs “all these tools in their toolbox” to combat major drug traffickers.

She argues that data shows that hardened criminals from cartels are not the ones being most targeted by law enforcement. According to the Drug Policy Alliance, the average value of a state seizure in 2013 was just over $5,000 in California.

“That’s not the seizure of speed boats that we see on Miami Vice.” 

“That’s not the seizure of speed boats that we see on Miami Vice,” Mitchell said.

“Police shouldn’t be able to ‘sweep and keep’ your private property simply by saying they suspect a crime connection,” Mitchell said in a statement this week.

“This law won’t protect the drug lords that police say they’re after but will cut down on the number of folks in poor, black and brown neighborhoods subject to ‘confiscation without conviction,'” Mitchell said.

California’s state asset forfeiture law is currently one of the strictest in the country. However, in cases where local police work on a joint task force with federal law enforcement authorities, they have the option to transfer a case to federal court — where a conviction is not required to seize property.

In those federal cases, a defendant’s property is divided up through what is known as equitable sharing. Originally introduced in the 1980s with the hopes that it would allow states to better coordinate with the feds to combat drugs, equitable sharing permits the federal government to take 20% of what is seized during a case.

State and local agencies take the other 80%. Supporters of the bill argue that this process incentivizes local law enforcement to transfer more cases to the federal system, leading to protracted legal battles for defendants to get back their stuff. A report by the Drug Policy Alliance, who are supporters of the bill, found that between 2005 and 2013, state forfeitures remained flat, but federal forfeitures more than tripled.

According to another report from the ACLU on the state’s forfeiture numbers, communities predominantly of color and in poverty-stricken areas see a lopsided amount of asset seizures in California.

Their analysis found that 85% of the bounty from federal asset forfeiture in California goes to agencies that police communities that are majority people of color. Additionally, they found that counties with higher per capita seizure rates have an annual household income below the state median. They also found that the number of California law enforcement agencies utilizing federal civil asset forfeiture laws has increased from 200 to 232 in the last two years.

In 2015, former Attorney General Eric Holder moved to limit the equitable sharing program nationwide by barring local and state law enforcement to seize property under federal law without evidence of a crime. However, Holder left in place a few exceptions, most notably for joint task forces.

“Current asset forfeiture practices have wreaked havoc on innocent people throughout the country, especially people of color, immigrants, and those who can’t afford to fight the government in court,” said Mica Doctoroff, Legislative Advocate with the ACLU of California.

Doctoroff added that the ACLU hopes that SB 443 can be used as a “blueprint” for civil asset forfeiture reform legislation being debated in statehouses around the country.

The bill will now be sent to California Governor Jerry Brown, who has until the end of September to sign it into law.

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