Here’s a sampling of some of the significant new laws from last session:

Register your ammo purchases: Californian gun owners will need to deal with a variety of new gun-control limitations after the governor signed a broad package of bills – and voters approved Lt. Gov. Gavin Newsom’s gun-control initiative on Nov. 8. The most potentially far reaching effects will come from the state’s approval of Proposition 63, which has various restrictions and a roll-out of implementation dates over a few years.

Beginning July 1, 2017, the state will implement a ban on high-capacity magazines and will require owners to report any lost or stolen weapons. The much-publicized requirement that ammo buyers pass background checks won’t go into effect until Jan. 1, 2018.

Higher minimum wages and more unpaid leave: “The statewide minimum wage goes from $10 to $10.50 an hour for businesses with 26 or more employees — a rate that will rise to $15 by 2022,” as the Mercury-News explained. That wage hike comes from Senate Bill 3. “Assembly Bill 2393 gives up to 12 weeks of paid parental leave to all K-12 and community college employees, including classified workers and community college faculty,” the newspaper reported.

Restrictions on police use of asset forfeiture: Senate Bill 443 was one of the last bills from last session that the governor signed, but it is widely viewed as one of the most significant changes in state law. Before the new law went into effect, police agencies had the ability to take the cash, cars and even homes from people even if they weren’t convicted of any crime. The authorities needed simply to claim the property was used in the commission of a drug crime. California had fairly tough restrictions in place, but local and state police agencies would partner with federal authorities under the “equitable sharing” program and then they would operate under looser federal law.

As the Drug Policy Alliance explains, “Starting on January 1, 2017, California law will require a conviction prior to forfeiture in any state case where the items seized are cash under $40,000 or other property such as homes and vehicles regardless of value.” If local or state agencies work with the feds, they could only share in the proceeds if an underlying conviction were obtained. The final compromise still allows law enforcement to keep proceeds of more than $40,000 in cash only – a provision which caused major law enforcement groups to drop their opposition.

Higher fees from the DMV … and more: Two new laws boost the fees for DMV registrations by $10 and for an environmental license plate by the same amount. Another DMV-related law requires drivers to restrain children 2 years or under in a rear-facing car seat unless they weigh 40 pounds or more. Drivers will need to pay attention to a new law dealing with hand-held devices. “Driving a motor vehicle while holding and operating a handheld wireless telephone or a wireless electronic communications device will be prohibited, unless the device is mounted on a vehicle’s windshield or is mounted/affixed to a vehicle’s dashboard or center console in a manner that does not hinder the driver’s view of the road,” according to the agency.

Gaining the ‘right to try’: California became the 32nd state to pass so-called “right to try” legislation, which allows terminally ill people to try experimental drugs that have yet to pass the federal Food and Drug Administration’s full battery of tests. Supporters argued that many people die while waiting for drugs to clear that long and cumbersome process. After Senate amendments, Assembly Bill 1668 includes the caveat that “a health benefit plan, except to the extent the plan provided coverage, is not liable for any outstanding debt related to the treatment or lack of insurance for the treatment.”

Beer and wine at barbershops: Assembly Bill 1322 passed overwhelmingly in both houses of the Legislature. This bill allows beauty salons and barber shops to serve their clients limited quantities of beer or wine at no extra charge without obtaining a license or permit from the Department of Alcoholic Beverage Control,” according to the Assembly analysis. The new law still allows local governments to impose restrictions on this practice.

Rescuing Fido from a hot car: Assembly Bill 797 reduces liability for citizens who break a car window to save an animal that is closed in a hot car – provided they first try calling the authorities and the authorities haven’t responded quickly enough.

Legalizing lane-splitting: Anyone who drives on California’s vast network of freeways has noticed motorcyclists’ habit of “lane-splitting,” as they drive between the cars that occupy the lanes. The law had required motorcyclists to ride “as nearly as practical entirely within a single lane,” even though the practice has been widely accepted. Motorcyclists have long argued that this is safer than remaining in one lane and risk being hit from behind. Assembly Bill 51 “would authorize the Department of the California Highway Patrol to develop educational guidelines relating to lane splitting in a manner that would ensure the safety of the motorcyclist, drivers, and passengers, as specified,” according to the state Legislative Counsel.

Ignore those juvenile convictions: Assembly Bill 1843 “Prohibits employers from asking an applicant for employment to disclose information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law, or seek or utilize any such information as a factor in determining any condition of employment,” according to the Assembly analysis. This was a contentious issue that passed on largely partisan lines (Democrats supported; Republicans opposed) given business-community concerns about their ability to screen job applicants.

You must be 21 to smoke or vape: Earlier in the year, the governor signed a package of smoking bills that, most significantly, raises the smoking age to 21. It also raised the age for vaping to 21. That last provision was particularly controversial because some argue e-cigarettes are a safer way for smokers to break their dangerous habit. Those laws went into effect in June.

Offering showers for the homeless: Assembly Bill 1995 would require community colleges that have shower facilities to allow enrolled homeless students to use those showers.

More bathroom choices for the transgendered: California passed a law, Assembly Bill 1772, that requires all businesses and public agencies with single-toilet bathrooms to make them available to people of all genders – a bill viewed more as a symbolic measure offered in the thick of the national debate over bathrooms for transgendered people.

The new Legislature will be back in full swing after the new year.

Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

Bill curbing abuses of “policing for profit” clears major hurdle

Good morning! It’s only Tuesday, but the week is rolling right along. And in fact, yesterday was a landmark day for civil libertarians in the state.

The California Assembly on Monday approved one of the most significant civil-liberties reforms of the legislative session. Remarkably, the bill – to put limits on the controversial practice of civil asset forfeiture by police agencies – had no major opposition after legislators and law-enforcement groups pieced together a compromise that seems to genuinely satisfy both sides. It passed by a 67-7 vote.

Asset forfeiture is the practice by which police agencies grab assets – cash, cars, boats, homes – of suspected criminals. Designed originally to fight drug kingpins, asset forfeiture has morphed into a means by which agencies bolster their budgets. The overwhelming percentage of forfeiture cases involve people who have not been convicted or even accused of a crime. 

CalWatchdog has more. 

In other news:

• “The Department of Water Resources has been drilling for weeks in Yolo County without permits required by state law designed to protect against ground water contamination, under the belief its activities are exempt. Like other counties’ battles with Caltrans over the same issue, Yolo County believes even government agencies need to obtain permits and conform to the state’s Water Code and subsequent regulations, which clearly express that state agencies are not exempt,” CalWatchdog has more.

• Amid concerns of a tainted water supply, authorities in Fresno have brought in outside experts to take a close look while overhauling city water practices. First residents complained about discolored water. Then city officials reviewed the city’s response and whether it had complied with laws requiring water issues be reported to state regulators. Then it was discovered that a former city water official kept hidden several hundred complaints from about 2004 to 2011, raising the prospect that thousands of young Fresno residents among the city’s half-million population may have been exposed to lead poisoning growing up, which can cause cognitive problems that persist for a lifetime, reports CalWatchdog.

• “Donald Trump will be presented to California voters on Nov. 8 as the nominee of two different political parties, after leaders of the ultra-conservative American Independent Party voted to select the New York real estate developer as its standard bearer,” reports the Los Angeles Times.
• “In a bid to preserve California’s cap-and-trade program beyond 2020, Gov. Jerry Brown has quietly proposed amending major environmental legislation to expressly authorize the regulation’s extension,” writes The Sacramento Bee.

Assembly:

• Next floor session is Thursday. 

Senate:

• Next floor session is Thursday.

Gov. Brown: 

• No public events announced. 

Tips: matt@calwatchdog.com

Follow us: @calwatchdog @mflemingterp

New follower: @IvanLevingston

Asset forfeiture is the practice by which police agencies grab the assets – cash, cars, boats, homes – of suspected criminals. Designed originally to fight drug kingpins, asset forfeiture has morphed into a means by which agencies bolster their budgets. The overwhelming percentage of forfeiture cases involve people who have not been convicted or even accused of a crime.

In one legal case, an agency took away a person’s car because it was used in the commission of a crime, even though the owner wasn’t involved in the crime.

Senate Bill 443 by Sen. Holly Mitchell, D-Los Angeles, was designed to stop the types of abuses mentioned above, without hindering the ability of police agencies to grab the illicit proceeds of drug dealers. It mainly requires police to gain a conviction before taking a person’s property. The bill was moving ahead with strong bipartisan support last year, but then law-enforcement lobbyists derailed it the week before a final Assembly vote. They argued primarily that the reforms would cost their agencies a significant amount of money that’s used for crime fighting and that passage of the reform would stifle their ability to target drug kingpins.

Mitchell revived the bill this year and recently hammered out a compromise. The California Police Chiefs Association and other law-enforcement groups dropped their opposition. In a statement, the chiefs’ association lauded “a compromise that enhances safeguards on Californians’ rights, while ensuring law enforcement has the tools necessary to combat the gangs and drug traffickers damaging our communities.” Officials with the American Civil Liberties Union of California seemed equally pleased with the compromise.

MORE ON THE ISSUE:

Diverse coalition of supporters

Broad overview of asset forfeiture

Legislative compromise on the issue

California actually imposes some of the toughest restrictions on asset forfeiture in the nation. Among other restrictions, the law requires a conviction, for instance, for forfeiture when the value of the property is under $25,000. But problems remain because state and local agencies circumvent the state’s law by partnering with federal agencies under a program known as “equitable sharing.” The partnership lets them operate under looser federal standards – and then the locals split the forfeiture proceeds with the federal agencies.

The bill – in its original and amended form – limits the ability of California agencies to do an end run around state law. “The bill would prohibit state or local law enforcement agencies from transferring seized property to a federal agency seeking adoption by the federal agency of the seized property,” according to SB443’s official summary. “The bill would further prohibit state or local agencies from receiving an equitable share from a federal agency of specified seized property if a conviction for the underlying offenses is not obtained … .” The local and state agencies could still participate in joint projects with the federal government and could still receive proceeds – but only if they first secured a criminal conviction in the underlying case.

Under the compromise, however, state officials would not need a conviction to seize “cash or negotiable instruments” above $40,000, whereas the original bill would have required a conviction for all cash seizures. Eighty percent of cash seizures are for less than $40,000, so the compromise protects the vast majority of people who have their cash seized. The average seizure in California is slightly above $5,000. Police agencies say the larger cash amounts usually are the result of drug deals, so the agreement makes sense to both sides. Furthermore, the bill still requires a conviction for the taking of property valued at more than $40,000, such as houses or cars.

That latter point is significant. In one highly publicized case in Anaheim, officials tried to take a commercial building valued at $1.5 million from a couple after one of its tenants was accused of selling $37 in marijuana. The authorities dropped that forfeiture case amid bad publicity, but SB443 is designed to halt those types of takings – where, say, a valuable property is seized simply because a drug crime might have been committed on the premises. The legislation also requires additional reporting from agencies that use the forfeiture process.

The goal is to stop what critics refer to as “policing for profit.” A study from the Drug Policy Alliance reported that some cities “were found to be prioritizing asset forfeiture over general public safety concerns, like response times and sufficient patrol officers.” The report referred to “multiple instances of cash grabs by law enforcement being incentivized over deterring drug sales, wherein police wait until a drug sale concludes and then seize the cash proceeds of the sale rather than the drugs, as drugs must be destroyed and are of no monetary value to law enforcement.”

As Reason’s Scott Shackford pointed out, “As California cities dealt with drops in revenue during the recession over the past decade … participation in the federal program skyrocketed.” But reformers say law enforcement priorities should be shaped by public-safety concerns rather than monetary goals.

Presumably, the final deal will still let agencies grab the dollars of real drug kingpins, while leaving the rest of our property alone – or at least requiring that residents are convicted of wrongdoing before losing it. Both sides believe the right balance has been struck. We’ll see if that’s enough to move the bill through the rest of the legislative process and secure the governor’s signature, but this was a major victory reformers.

Steven Greenhut is Western region director for the R Street Institute. He is based in Sacramento. Write to him at sgreenhut@rstreet.org.

After a failed attempt last year, so-called asset forfeiture — the controversial nationwide practice used by cops to permanently seize property belonging to individuals who have run afoul of the law but have not been convicted — could soon be reformed in California after all, with a once-dead bill making a sudden return.

Laws and loopholes

Senate Bill 443, a popular piece of legislation that went down to defeat once before, “aims to close a federal loophole that allows state and local law enforcement officials to pocket the proceeds and assets seized from a defendant — even if that person is only suspected of a crime,” BuzzFeed News reported. “If passed, the bill would require that a defendant be convicted first before cash and property can be permanently seized.”

“In 2015, despite a near 80 percent approval rating according to some polls, the bill lost 24-41 when it came up for a vote on the Assembly floor. However, California’s legislative process allowed for it to be placed in the inactive file[.]”

The defeat underscored the paradoxes surrounding the practice of asset forfeiture in the Golden State. “California law prohibits local authorities from permanently seizing most property without a conviction, but there’s a loophole in the law — called ‘equitable sharing.’ Local police can seize your property, hand jurisdiction over the feds, and get rewarded with up to 80 percent of the goodies even if prosecutors fail to convict — or even charge — an offender,” Debra Saunders recalled at the San Francisco Chronicle.

Until very recently, following the SB443 setback, in-state civil liberties activists and advocates have struggled to get the traction they hoped for. “California has been a challenge,” as Reason noted. “Not only do state regulations allow law enforcement agencies to seize and keep money and property without actually convicting people; in addition, restrictions the state has put on police (like restricting how much they can keep for themselves) can be bypassed by participating in the federal asset forfeiture program. As California cities dealt with drops in revenue during the recession over the past decade, that’s exactly what governments did — participation in the federal program skyrocketed.”

Successful negotiation

But in May, state Sen. Holly Mitchell, D-Los Angeles, reactivated SB443, amending it for a vote. Faced with an end-of-summer deadline to put the legislation before her colleagues, Mitchell managed this month to strike a deal with key law enforcement groups, clearing a huge hurdle toward passage.

“Under changes to Mitchell’s bill introduced Thursday, any property seizure in California worth less than $40,000 would now require a criminal conviction before police could take permanent action,” according to the Los Angeles Times. “Seizures higher than that amount would still allow for a lower burden of proof, such as the standard used in civil cases. The $40,000 threshold is an attempt to balance advocates’ desire that those in poverty don’t lose their property unless they’re convicted of wrongdoing and law enforcement’s interest in preserving its ability to go after large criminal enterprises, Mitchell said.”

A stubborn practice

Despite the deal, however, high-profile asset forfeiture cases have cropped up in California throughout the summer. James Slatic, owner of licensed medical cannabis extraction company Med-West Distributors, was raided for the second time this June by a narcotics task force. In January, officers seized “more than 30,000 cartridges of cannabis oil and a couple of pounds of concentrate,” along with “$1.4 million in cash, product and money from various bank accounts” belonging to Slatic, according to Inc. magazine. And in June, “San Diego law enforcement used federal asset forfeiture laws to freeze and seize the company’s cash and the money in Slatic’s personal bank account, the bank account of his wife (who is a federal employee at Veterans Affairs), and his kids’ college savings accounts. The San Diego Sheriff’s Office and San Diego County District Attorney’s Office declined to explain why they seized Med-West’s and the Slatic family’s money, but neither has charged Slatic with a crime.”

In another notable — if less sympathetic — case this month, a judge ruled that the U.S. government “can seize money from life insurance policies taken out by a shooter in the San Bernardino, California, terrorist attack,” the Associated Press reported.

Bipartisan coalition urging vote on civil asset forfeiture bill

Good morning! Happy hump day.

Proponents of a measure to close a loophole that allows local law enforcement agencies to seize citizens’ property without a criminal conviction or even an arrest — a practice dubbed “policing for profit” — are moving behind the scenes to shore up support for the bill that died last September after a last-minute flurry of opposition from law enforcement.

The high-profile coalition of supporters — which spans the partisan divide with powerful advocacy groups and influential members of both parties — is aiming for a vote in the Assembly next week to block law enforcement from circumventing strict state law by partnering with the federal government in a program called “equitable sharing.”

On the right, Republican consultant Mike Madrid and Shawn Steel, a former chairman of the California Republican Party, are urging Republican support while California Democratic Party Chairman John Burton is working with Democrats. 

CalWatchdog has more.

In other news:

• Kevin Faulconer, the Republican mayor of San Diego, says he will not run for governor in 2018 if re-elected in November as mayor, reports the San Diego Union-Tribune. Faulconer was widely seen as Republicans’ best potential candidate for governor.
• The San Francisco Board of Supervisors approved a measure on Tuesday that amends its sanctuary city policy, giving local law enforcement greater discretion to notify immigration officials of an undocumented felon’s release from custody, according to SF Gate.
• “The Cal State Board of Trustees approved a plan Tuesday to raise faculty salaries by 10.5% over three years, capping a long-running dispute over pay that threatened to wreak havoc on the nation’s largest public university system,” writes the Los Angeles Times.
• “Assemblyman Ian Calderon, D-Whittier, has spent $41,500 in political funds to support Proposition 50, an anti-corruption measure put on the ballot in response to issues raised when his uncle, former Sen. Ronald Calderon, was indicted in a bribery case,” writes the Los Angeles Times.

Assembly:

• Full slate of hearings, including packed appropriations meeting.

Senate:

• Several joint hearings, including one on a ballot initiative to redirect bag fees away from grocers.

Gov. Brown:

• No public events scheduled.

Tips: matt@calwatchdog.com

Follow us: @calwatchdog @mflemingterp

New followers: @kelseybrugger @mattmahon

The justices decided “they would not hear a long-running lawsuit that contends the state does not do enough to notify the rightful owners before seizing their assets,” the San Francisco Chronicle reported. “Under the state’s law, accounts can be seized if a bank or retirement fund has lost track of the owner for three years. But lawyers who sued called the state’s system a ‘recipe for abuse’ because many people are unaware that their assets or those of a relative are being held by the state.”

The suit put the court’s interpretation of fundamental constitutional rights at stake. “Lead plaintiff Chris Taylor filed the class action at issue back in 2001, taking aim at California’s Unclaimed Property Law, which provides for the conditional transfer to the state of unclaimed property such as savings accounts or shares of stock,” Courthouse News reported. “Taylor accused state controller Betty Yee of violating due-process rights by transferring property to the state without providing the potential owners adequate notice.”

“During the intervening years, the challenge brought several amendments to the law’s notice procedures. Chief among them, California now notifies potential owners before the state transfers the unclaimed property, not after.”

Room for abuse

But the state has not changed its passive stance on money “which they freely admit they owe to someone (or that person’s heirs if they are deceased) but are unable to deliver because they can’t find them,” as HotAir noted. Other states, the site observed, had reason to watch the case closely. As CNN Money has calculated, “States, federal agencies and other organizations collectively hold more than $58 billion in unclaimed cash and benefits. That’s roughly $186 for every U.S. resident. The unclaimed property comes from a variety of sources, including abandoned bank accounts and stock holdings, unclaimed life insurance payouts and forgotten pension benefits.”

Critics have charged that governments take advantage of the perverse incentive to keep people in the dark about what they’re owed. California alone has amassed some $8 billion in unclaimed assets, according to the Los Angeles Times; “from this fund, it takes about $450 million a year to add to the state budget,” the paper reported.

Future hopes

Two justices did offer Taylor and his supporters a small consolation prize. In a concurring opinion, Justices Samuel Alito and Clarence Thomas recommended that the court consider “in a future case” how proactive states should be in similar situations.

“As advances in technology make it easier and easier to identify and locate property owners, many states appear to be doing less and less to meet their constitutional obligation to provide adequate notice” prior to seizure, Alito reasoned. “Cash-strapped states undoubtedly have a real interest in taking advantage of truly abandoned property to shore up state budgets. But they also have an obligation to return property when its owner can be located.” Alito said “the convoluted history” of Taylor’s suit “makes it a poor vehicle for reviewing the important question it presents[.]”

Legislative divisions

More broadly, asset forfeiture laws have become a target for reformers in both political parties, with bills attracting controversy in states across the country. Last year, a divided Legislature in Sacramento saw Senate Bill 443 sail through the Senate but sink in the Assembly. State Sen. Holly Mitchell, D-Los Angeles, and Assemblyman David Hadley, R-Torrance, “would have reformed the state’s asset forfeiture regulations to require that police and prosecutors actually convict citizens of crimes before seizing ownership of their assets to spend on themselves,” as Reason magazine noted. Between the Senate’s vote and the Assembly’s, state police and prosecutors mobilized effectively to prevent the bill from becoming law.

Golden State cops teamed with prosecutors to sink the legislation once it became clear that the Senate vote had made it a viable threat to current forfeiture law, which permits law enforcement to keep confiscated property worth under $25,000 even if the former owner is not convicted of a crime. Through these so-called forfeitures, police departments across the country have been able to swell or cushion their budgets — sometimes substantially.

A tide turned

But in spite of protections that have made California’s asset forfeiture rules more stringent than others, lawmakers in both parties zeroed in on the practice as excessive and sometimes unjustifiable. State Sen. Holly Mitchell, D-Los Angeles, and Assemblyman David Hadley, R-Torrance, advanced legislation that would have returned property valued at any amount without a conviction. But after the state Senate version, SB443, won in a 38-1 vote, bipartisan support for the bill began to dry up, despite efforts to scale it back in committee and dispel budgeting worries. “The bill was opposed by Republicans and some Democrats, and failed on a 24-41 vote in the Assembly. It could be revived on the floor in the future,” the Los Angeles Times noted, although this year, the deadline for passing new legislation itself has passed.

Adding to the uphill climb, the federal government did its own part to pressure the state to abandon reform. “Documents obtained by the Institute for Justice show that the California District Attorneys Association has been circulating emails from the Justice and Treasury Departments confirming that the current reforms proposed to California’s civil asset forfeiture laws would make the state ineligible to receive millions of dollars through the federal government’s Equitable Sharing Program,” according to the Daily Signal, a news site run by The Heritage Foundation.

Through that program, which gives a cut of seizures to agencies at the state and local level, California law enforcement netted nearly $90 million last year, the Daily Signal noted.

Other states advancing asset forfeiture reforms have also faced similar pressure to that inflicted on California. But they have met with mixed results. “The Departments of Justice and Treasury threatened New Mexico with ending it equitable sharing program if reforms were passed. In response, New Mexico not only passed asset forfeiture reform, but abolished it entirely,” observed Americans for Tax Reform. “In May of this year, Montana passed asset forfeiture reform that requires a criminal conviction prior to permanent forfeiture, as well as several other requirements that beef up protections for property owners. Other states making strides in asset forfeiture reform are Minnesota, North Carolina and Michigan.”

Looking ahead

So far, advocates for California forfeiture reform have not talked up the prospect of reintroducing a bill for next year’s legislative session. According to Reason, however, another option remained — a ballot initiative building on past successes with reducing some criminal penalties, paring down the so-called “three strikes” law, and encouraging treatment instead of jail time for lesser drug offenses. “But that’s a plan that would have some timing issues,” Reason noted, with organizers unlikely to get a measure before voters until the off-year election in 2018. Nevertheless, “if the polling is accurate, it’s certainly an option if they aren’t able to push legislation through by then.” According to Americans for Tax Reform, California respondents expressed hostility to asset forfeitures “by a massive 76 percent to 14 percent.” Despite the reform bill’s setback in Sacramento, little seemed likely to shift that imbalance in the months and years to come.

“No one should lose his or her property without being first convicted of a crime,” said Scott Bullock, a senior attorney with the Institute for Justice, which has pushed for a nationwide reform of asset forfeiture laws. “That’s a basic tenant that most Americans are shocked to learn is being violated daily by law enforcement officials nationwide.”

On Thursday, the state Assembly rejected legislation on a 24-44 vote that would have reformed the state’s rules for seizing assets of those suspected of criminal activity.

A bipartisan coalition of lawmakers urged their colleagues to defend the due process and property rights of those not yet convicted of a crime.

“We have today the opportunity to restore a core principle of American justice, and that is that no person’s property can be taken from him or her without due process of law, without a trial and a conviction,” said Assemblyman David Hadley, R-Torrance, who carried the bill in the lower house. “In California in the last 20 years, tens of thousands of people have had property taken and that property has not been returned – even though those individuals have neither been charged with a crime nor convicted of a crime.”

Asset Forfeiture: Controversial Tool for Targeting Criminals

Under the country’s asset forfeiture system, law enforcement agencies have the legal authority to confiscate property of anyone suspected of a crime. Those agencies are then entitled to keep a percentage of the assets – providing a direct financial incentive for government agents to seize personal property.

Law enforcement agencies defend the practice as a vital tool for stopping organized crime and prosecuting drug dealers.

“Is there anyone who could seriously argue that that dealer should be able to still keep the dirty money derived from those illegal sales?” asked Chula Vista Police Chief David Bejarano, who also serves as president of the California Police Chiefs Association, in a recent Sacramento Bee op-ed piece. “How about the low-level criminals frequently paid by drug dealers to transport dirty money?”

Critics of the practice say it has been widely abused, indiscriminately punishing average citizens alongside criminal masterminds. A multi-year investigation by the Drug Policy Alliance, “Above the Law: An Investigation of Civil Asset Forfeiture Abuses in California,” found that the average value of a state seizure in California in 2013 was $8,542.

“Unfortunately, forfeiture has become a widely abused practice,” explains Steven Greenhut, the San Diego Union-Tribune’s California columnist. “Instead of targeting drug kingpins as intended, police sometimes target average citizens who haven’t been convicted or even accused of a crime.”

California law enforcement agencies circumvent state law

Each state has its own rules governing asset forfeiture. Under federal law, any amount can be seized without a conviction. In California, assets valued at less than $25,000 are exempt from seizure. To evade California’s basic legal protections, law enforcement agencies have partnered with federal agencies, who keep a cut and pass along some of the seized assets to their local counterparts.

Senate Bill 443, authored by Senator Holly Mitchell, D-Los Angeles, would have required a conviction for most asset forfeiture cases and blocked law enforcement agencies in California from using federal agencies as a middleman for circumventing state law.

According to a legislative analysis of the bill, “Under federal law, 20 percent of revenue from forfeited assets is retained by the federal agency involved, and 80 percent is allocated to the local agencies involved in the seizure in proportion to their involvement in the case.”

In the past decade, California law enforcement agencies have seen their share of seized assets more than triple to more than $100 million per year. California law enforcement agencies received $89.6 million in funds from the Federal Equitable Sharing Program in 2014 — on top of approximately $28 million in assets seized at the state level.

Law enforcement lobbying to maintain vested interest

Public safety groups that have a vested interest in maintaining civil asset forfeiture rules waged an intense lobbying campaign to defeat the bill. The California District Attorneys Association launched an effort targeted at individual members.

In one flyer, the group targeted Assemblyman Phil Ting of San Francisco, claiming his support for the measure would cost his district $2.1 million in law enforcement funding.

The scare tactics included dire warnings that Sen. Mitchell’s legislation would jeopardize hundreds of millions of dollars in federal law enforcement funding.

“These requirements would violate federal forfeiture guidelines, and would thus end all federal equitable sharing for over 200 law enforcement agencies and task forces in California,” wrote Sean Hoffman, director of legislation for the California District Attorneys Association. “SB443 will severely reduce valuable resources obtained through drug asset forfeiture that fund investigation and prosecution, drug treatment and prevention, training, and community based organizations.”

Amid growing national concern over the practice of so-called civil asset forfeiture, bipartisan support has swelled in California to reform the practice, with a new bill poised to add Assembly to Senate approval.

An emerging consensus

Asset forfeiture, wherein law enforcement retains property or cash seized in the course of an arrest, has come under broad criticism from the political Left and Right.

Predictably, libertarians have trained their political and legal fire on the practice. In an interview with the Wall Street Journal, Institute for Justice attorney Robert Everett Johnson warned that asset forfeiture had short-circuited due process. “People around the country are having their money taken, based on the barest suspicion that they might be involved in some sort of drug offense without ever bringing the case before a jury or convicting them of a crime,” he said. The California ACLU has recently thrown its weight behind legislation reforming asset forfeiture.

But liberals have also attacked its role in civil rights abuses, while conservatives have bridled at its dismissive approach toward property rights — and its increasing use as a source of government funding. At the national level, conservative justice reform groups, such as Right on Crime, have singled out asset forfeiture as a rule of law problem. “Our Constitution is meant to be a shield against this sort of arbitrary and capricious over-extension of government power, but to this point, most states — and the federal government — have very lackluster protections in place,” two Right on Crime supporters editorialized in the Washington Examiner. West Coast conservatives raised the alarm when, in recent months, several California cities were accused of cashing on through asset forfeiture — “at a time of dwindling police budgets, potentially creating pressure on cops to make more seizures,” as the Los Angeles Times reported this spring.

Rolling back excesses

The shift in the political winds has given a boost to SB443, introduced this year by state Sen. Holly Mitchell, D-Los Angeles. In addition to prohibiting transfers of seized property to the federal government, the bill would wipe out any prior agreements that would necessitate such transfers, as the Tenth Amendment Center observed. 

What’s more, court protections for state residents would be beefed up. “Californians would need to be convicted of a crime before they could lose their property,” the Orange County Register noted; “the bill would institute new notice requirements, establish court-appointed counsel for indigent owners and allow those who ‘substantially prevail’ in a civil forfeiture case to recover attorney’s fees.”

In an effort to minimize abuses, state law already reduced the amount, relative to federal rules, that law enforcement could keep from any seizures — 65 percent, rather than the 80 percent allowed at the federal level. Further protections were also put in place. “California requires a conviction to justify keeping seized assets of up to $25,000,” noted the Times. “For larger amounts of money, police must show by ‘clear and convincing evidence’ that the property was connected to drug sales or manufacturing – a higher standard than the ‘probable cause’ required under federal law.”

But the curbs on asset forfeiture imposed by SB443 could make a powerful impact on the cut of forfeitures available to law enforcement, also known as equitable sharing. “Since 2008, law enforcement agencies in California have generated and spent over $380 million in equitable sharing funds – the highest in the nation,” according to the Register. “Almost $60 million went to salaries and overtime.”

Catching a wave

While California has often been seen as a bellwether for state-level legislation, passage of SB443 would follow a strengthening trend toward reassessing the validity of asset forfeiture rules. Federal officials have already begun chipping away at the more controversial elements of the practice. “In January,” as the Journal reported, “the Justice Department said it was curtailing a program that had allowed state law-enforcement agencies to pursue civil forfeitures under federal law and then share in a large portion of the proceeds. The department has also launched a review of the federal asset-forfeiture program.”

Republican realignment

The bill has enjoyed the effective sponsorship of state Sen. Holly Mitchell, D-Los Angeles. But it has attracted bipartisan support, intensifying a nationwide shift among Republicans toward serious interest in recasting criminal justice issues around fiscal responsibility, devolved government power and a culture of mercy.

As Mitchell pointed out, U.S. Senators Chuck Grassley, R-Ia., Mike Lee, R-Utah, and Jim Sensenbrenner, R-Wis., all put their names to a January letter warning the Justice Department that seizures under federal asset forfeiture law had become “overzealous” and oppressive. “We are concerned that these seizures might circumvent state forfeiture law restrictions, create improper incentives on the part of state and local law enforcement, and unnecessarily burden our federal authorities,” they wrote.

For libertarians, the shift marked a welcome change of heart among Republicans in California and nationwide. FreedomWorks noted approvingly that at least one California Republican withdrew his opposition over the course of the bill’s journey through the state Senate.

“State Sen. Jeff Stone, R-Temecula, who voted against SB443 in committee, rose in support when it reached the floor of the chamber. ‘This bill basically says that the government cannot seize the property of innocent people. Asset forfeiture is an important tool for law enforcement, and I strongly believe that the guilty should be subject to forfeiting their assets gained by illegal means,’ said Stone. ‘At the same time, however, the government should not be able to permanently seize property of people that are suspected of committing a crime. [T]his bill simply allows for innocent people to get their property back if they are not convicted of a criminal activity,’ he added.”

Horror stories

Although California has seen its share of asset forfeitures run amok, they rarely get traction on their own, so often happening out of the public eye. In late April, however, the Drug Policy Alliance helped fuel momentum for SB443 by releasing a Southland-centric report on the dark side of asset forfeiture in California.

In one anecdote, the Orange County Register reported, “retired Redondo Beach police Lt. Diane Goldstein described how a food truck owner had $10,000 in cash seized by police on the grounds that a drug dog detected narcotics on the money. While charges were never filed, and a judge ordered the money returned, the money had already been divvied up with the federal government, and the man didn’t have the financial resources to pursue the issue further.”

Deep roots

Thanks to their personal and political history, some longtime California Republicans have found themselves at the center of the broader debate on criminal justice reform. In the early 1990s, Patrick Nolan, onetime Republican leader in the Assembly, spent 33 months in prison for felony racketeering in the wake of the FBI’s 1988 Shrimpscam bribery sting. His experience there led to a decades-long effort to spearhead reforms targeting sentencing guidelines, mandatory minimums, drug policy, prison rape and recidivism rates, to name a few.

As the New Yorker recently recounted, Nolan’s labors have been instrumental in shifting the center of gravity among conservatives and libertarians toward a proactive stance on changing the way the U.S. approaches criminal justice. “When conservatives did venture into California, last November, to help pass Proposition 47,” the New Yorker observed, “the measure required that two-thirds of any money saved be funnelled into alternative correctional programs.” According to Nolan, “we know that just releasing prisoners or diverting them from prisons without services would increase crime.”

“Nolan has a wish list of additional reforms that he will pitch to conservatives. He would like to see abusive prosecutors lose their licenses. He would require the police to videotape interrogations from beginning to end, not just a confession that may have been improperly extracted.”