California Advances on Reforming Asset Forfeiture

August 17, 2016 by

Texans love the saying, “Don’t California My Texas. But with California’s new civil asset forfeiture reform bill passed through the Assembly (69-7) and poised to ease through the Senate, perhaps Texas could rethink that phrase.

Asset forfeiture is a tool used by law enforcement to seize cash, boats, cars, homes, and other personal property. While used against suspected criminals, the majority of cases involve individuals who haven’t been convicted – or even accused of – committing a crime.

California’s bill – Senate Bill (SB) 443 – is a bipartisan effort coauthored by State Senator Holly Mitchell (D-Los Angeles) and State Assembly Member David Hadley (R-Manhattan Beach). By requiring a criminal conviction in most state civil asset forfeiture cases, the burden is placed on government rather than property owners, to prove guilt beyond a reasonable doubt.

California law enforcement agencies can still opt to use federal rather than state law through equitable sharing, but the bill does target it. Equitable sharing is a program that awards state or local law enforcement agencies percentages of forfeited assets for their joint participation in a seizure. In Texas, state and local agencies can receive 70% in equitable sharing in most cases, creating a lucrative incentive to seize.

SB 443 requires, that under federal cases, state and local law enforcement agencies only receive an equitable share of forfeited property if there is an underlying conviction, or the property is $40,000 or more in cash. Cash under $40,000 and any vehicles, boats, homes, or other personal property will require a conviction regardless of value.

Also made possible by SB 443 is the increased cash value threshold for requiring a conviction, from $25,000 to $40,000. Anything under that new amount requires a conviction. And since 80% of forfeitures tend to be under $40,000, they will potentially prevent abuse seen in past cases. Boats, vehicles, and homes will still, as before, require a conviction, regardless of value.

As for reporting and transparency, the bill requires the state to publish forfeiture notices, in plain English, once a week, for three successive weeks in the main newspaper in the county of seizure, or where the forfeiture hearing is located. The notice has to detail the property owner’s rights, hearing date and time, and what they must do in order to contest the forfeiture.

Going even further, it requires detailed reporting from the Attorney General. In Texas, the AG is only required to provide an aggregate report detailing the total amount seized in a year. Under California’s bill, the AG has to provide an annual report for the state, each county, and each city detailing: the number of state, federal, and joint forfeitures; the number of cases, and the court docket numbers; the number of suspects charged with a controlled substance violation; the number of alleged criminals under state and federal law; the results of each case; recipients of forfeited assets, amount received, and disbursement date.

The law intends to protect people like Tony Jalali. Jalali’s $1.5 million commercial building in Anaheim became a poster for asset forfeiture reform when local officials attempted to seize it for renting to two medical marijuana dispensaries, which are legal under California state law. Because local officials couldn’t seize or benefit from the seizure without a conviction of Jalali, they teamed up with federal officials. It was later revealed that through equitable sharing local officials would have received 80% of the assets if forfeited. Fortunately for Jalali, federal prosecutors eventually dropped the case.

Institute for Justice Legislative Counsel Lee McGrath said, “[SB 443] means the Golden State is closer to better protecting Californians’ rights and closer to ending policing for profit.”

Mitchell introduced SB 443 last year where it breezed through the Senate. It didn’t pass through the Assembly, but after it was amended this year, opposition fell silent. The Assembly passed the bill on Monday, and it is now back to the Senate where it is expected to pass yet again.

SB 443 presents common-sense reforms that anyone who truly supports strengthening civil liberties should support. “State legislators across the country would look to California as a model to protect state sovereignty from federal overreach,” said McGrath.

If California can pass a bill that limits federal overreach, increases government transparency, and better protects its citizens’ liberties, surely the Texas Legislature can do even better.

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About the Author

Charles operates the Houston office for Empower Texans/Texans for Fiscal Responsibility.