“The census determines federal funding for the next ten years and drives reapportionment and redistricting,” the California Secretary of State office said in a statement on Twitter. “We must stay vigilant. The citizenship question is just the latest red flag.”

The U.S. conducts a census every 10 years with its stated purpose of providing “current facts and figures about America’s people, places, and economy.”

But the most notable purpose is determining each state’s population to apportion seats in the House of Representatives, as that number is set at 435.

Illegal immigrants are included in the population count but the census has not asked a citizenship question since the early 1950s.

While the American Community Survey, which the Census Bureau takes every year to gain a better understanding of changing social and economic climates, does ask a citizenship question, the ACS is not used for apportionment purposes.

And despite the Census Bureau being bound by a confidentiality requirement regardless of whether a new question is added, progressives fear that undocumented immigrants will still choose not to answer to avoid admitting their undocumented status.

Mike Levin, a Democrat running for the congressional seat in California’s 49th district, said the move was more evidence of “Trump’s policy war on California.”

Furthermore, the Commerce Department, which oversees the bureau, recently received a letter from a group of Democratic lawmakers calling the request “deeply troubling.”

“This chilling effect could lead to broad inaccuracies across the board, from how congressional districts are drawn to how government funds are distributed,” the letter read.

But the Department of Justice argues that a question on citizenship would lead to better enforcement of the Voting Rights Act.

“To fully enforce those requirements, the Department needs a reliable calculation of the citizen voting-age population in localities where voting rights violations are alleged or suspected,” the December 12th letter, written by DOJ general counsel Arthur Gary and obtained by ProPublica, reads.

“The U.S. Census Bureau is evaluating the request from the U.S. Department of Justice and will process it in the same way we have historically dealt with such requests,” a bureau spokesman told CalWatchdog. “The final list of questions must be submitted to Congress by March 31, 2018. Secretary Ross will then make a decision. Our top priority is a complete and accurate 2020 Census.”

Currently, California holds 53 congressional seats, the most in the country.

The request is just the latest installment of the conflict between California and the Trump administration, as the Golden State is continuing to place itself at the center of the so-called “resistance” against the president’s larger immigration agenda.

Current California law already bars the practice of seizing property without a conviction for assets valued at under $25,000 and requires “clear and convincing evidence” of a connection to a crime for assets exceeding $25,000 in value.

Law enforcement can get around that if the seizure is done in coordination with federal law enforcement and 20 percent of the proceeds are kicked up to the federal government — yet often there’s not even an arrest because federal law doesn’t require it. Instead there’s just a suspicion that the property, not necessarily the person, is attached to some criminal activity.

People often get their property back, but after considerable time and hassle. Or sometimes they don’t. So the bill, sponsored by Sen. Holly Mitchell, D-Los Angeles, and Asm. David Hadley, R-Torrance, would close that loophole and require a conviction for seizure of assets of any amount. Proponents like Mitchell and others say the practice often violates the Fourth and Fifth Amendments.

“Our country and our state’s constitutions aim to protect the citizenry and this is a classic example of that,” Mitchell told CalWatchdog in an interview. “If folks love to promote the right to bear arms, I say we have the right to our own private property not being seized by law enforcement, (especially) when not even being charged with a crime.”

How it works

The program was designed to seize the assets of large criminal enterprises, toppling them in the process. But as budgets were cut, law enforcement saw it as a viable revenue stream, and the claims of abuse started piling up.

Some of the more egregious examples have been the attempted seizure of a $1.5 million building in Anaheim because the landlord rented space to a medical marijuana dispensary (which was legal in CA), and the story of Bob Alexander, who had $10,788 in cash that he was about to use to purchase a car for his daughter before the money was seized in Mendocino County because he had medical marijuana on him (along with the doctor’s recommendation for the marijuana, which was shown to police).

Alexander did get his money back eight months later. No charges were ever filed.

Opponents of the bill argue that law enforcement doesn’t police for profit, and asset seizure is a vital tool used to cripple criminal organizations, partially by funding costly investigations. The California District Attorneys Association claimed the bill would “deny every law enforcement agency in California direct receipt of any forfeited assets.”

“California’s asset forfeiture law will be changed for the worse, and it will cripple the ability of law enforcement to forfeit assets from drug dealers when arrest and incarceration is an incomplete strategy for combatting drug trafficking,” Sean Hoffman, CDAA’s director of legislation argued in a letter.

“Narcotics investigations are costly, and the California asset forfeiture law’s dedication of forfeiture proceeds to the seizing law enforcement agencies speaks to the serious resource needs involved when drug traffickers and their ill-gotten gains are pursued,” Hoffman added.

Revenue from the equitable sharing program exploded over the last decade as local agencies in California became more aware of the loophole and budgets were threatened as part of the recession. From 2002 to 2013, revenue from federal forfeitures (the ones that don’t need a conviction) tripled while revenue from state forfeitures (which often do require a conviction) stagnated, according to a study by the Drug Policy Alliance.

And it pays. The LAPD was able to purchase a $5 million helicopter with funds from its equitable sharing account.

There is also a difference between civil asset forfeiture and criminal forfeiture. According to the Department of Justice, criminal forfeiture comes as part of a criminal prosecution of a defendant. Yet in civil forfeiture cases, “the property is the defendant and no criminal charge against the owner is necessary.”

While this doesn’t easily explain how property can commit a crime, it does explain why there are cases have names like U.S. v. $4,000 and U.S. v. White Cadillac, as reported by NPR.

Building momentum

On Monday, Mitchell will join Alexander, the American Civil Liberties Union and a local Black Lives Matter chapter outside the Capitol building to push for the bill along with another, which would make public the details of investigations into use of force incidents and confirmed cases of misconduct by police.

The bill died on the Assembly floor last year under massive pressure from law enforcement groups, but is eligible for reconsideration, so supporters are building momentum. The bill already passed the Senate, and it’s unclear where Gov. Jerry Brown stands on the issue.

The bill is supported by groups on both sides of the political aisle — Mitchell and Hadley penned an op-ed last year. In fact, Grover Norquist, president of the conservative Americans for Tax Reform, came out in support of the bill last week, giving additional cover to Republicans.

“In America, the Fourth and Fifth Amendments are supposed to protect our due process and property rights, civil asset forfeiture in its current form undermines these principles,” Norquist said in his statement. “This status quo in the Golden State is unacceptable.”

Late last year, momentum for the bill dissipated as the DOJ put on hold the equitable sharing program. But just last week, the DOJ was “pleased” to announce the program was back on.

Mitchell told CalWatchdog that she’s not against the program in general, just when it’s used to take property without giving due process to the owner. She said many of the reports she’s read about and heard about from voters scared her into thinking about how her and her mother could have run into similar problems on one of their many trips back from Vegas, where her mother would win jackpots playing slots.

“When I thought about it and began to hear the stories I realized that I could have been a victim,” Mitchell said. “The kinds of scenarios are so commonplace.”

She applauded state lawmakers who years ago added the conviction requirement, but said it’s time to take it one step further.

“California legislators stepped up years ago to change law, but it’s this loophole that continues to cause problems for Califorina residents,” Mitchell said.

The ongoing legal struggle between Apple and the Department of Justice shifted dramatically as federal officials dropped their effort to force the Cupertino tech giant to grant access to the iPhone used by Syed Farook, the terrorist who perpetrated the San Bernardino attacks.

Through means which have yet to be disclosed, DOJ gained access to the phone’s contents on its own, raising questions about its methods which may be revealed to Apple as the focus of litigation shifts away from Riverside, California, to New York.

Cracking the code

“F.B.I. investigators have begun examining the contents of the phone but would not say what, if anything, they have identified so far,” the New York Times reported. “The Justice Department also remained tight-lipped about how it was able to finally get into the smartphone after weeks of furious public debate.

“A second law enforcement official who spoke on the condition of anonymity to reporters in a conference call said that a company outside the government provided the F.B.I. with the means to get into the phone used by Mr. Farook, which is an iPhone 5C running Apple’s iOS 9 mobile operating system. The official would not name the company or discuss how it was accomplished, nor would officials say whether the process would ultimately be shared with Apple.”

But according to industry sources cited by NBC News, the Israeli firm Cellebrite was contracted to do the job. “The firm has been rumored to be behind the FBI’s newfound ability to access the device, thanks to a previous and unconfirmed report from an Israeli newspaper,” The Hill noted. Though Cellebrite and the Department of Justice have not confirmed the rumors or the reports linking the two, Bureau officials have “routinely contracted Cellebrite over the last five years,” The Hill added. “The company, which publicly boasts of its ability to hack into Apple devices, has received over $2 million in purchase orders from the agency since 2012.”

Another shoe to drop

Nevertheless, the details of the government’s behind-the-scenes efforts could soon come to light. “Apple is in the middle of a separate case in Brooklyn, New York, in which the Justice Department wants the company to unlock an iPhone used by an alleged drug dealer. So far, Apple has resisted,” as CNET observed. But if federal officials press forward with litigation, “both sides would have to exchange information and evidence. That’s when Apple could demand that the DOJ explain how it hacked Farook’s iPhone[.]”

According to Reuters, a federal magistrate ruled last month in the Brooklyn case “that he did not have authority to order Apple to disable the security of an iPhone seized during a drug investigation. The Justice Department then appealed to a district court judge.”

“After filing that appeal, U.S. prosecutors notified the magistrate in the San Bernardino case that a third party had demonstrated a new technique which could access the iPhone in question. The Justice Department disclosed the new technique to the judge one day after the demonstration, and then confirmed its success on Monday, according to court filings, though it did not reveal how its solution works.”

Notably, the means whereby the Department of Justice might access the contents of the alleged drug dealer’s cellphone could well differ from those used on Farook’s phone. That’s because “the Brooklyn phone runs an older version of Apple’s mobile operating system, iOS 7, than the phone in San Bernardino, which ran iOS 9,” as Quartz pointed out. “As such, it’s likely that the Brooklyn phone is easier to access. For example, hacking tools can be bought on eBay to unlock some phones running iOS 8 or earlier.”

Edward Snowden recently made headlines by claiming that the FBI lied about needing Apple’s help at the beginning of the controversy because of a relatively easy-to-implement passcode workaround.

Photo courtesy of mashable.com

Thanks to California regulators, Volkswagen hasn’t yet found a way out of worldwide trouble. Federal agencies have flexed their muscles in tandem. “U.S. regulators rejected Volkswagen AG’s plan for recalling nearly 500,000 diesel-powered cars,” as the Wall Street Journal noted.

“The Environmental Protection Agency, which is working with California regulators on the VW fraud, had already said it was not satisfied with the recall plan and requested more information from the company,” the New York Times noted. And the Justice Department, “which had opened its own investigation, filed a civil complaint against the company, accusing it of exceeding EPA air quality standards and violating the Clean Air Act.”

The California Air Resources Board, meanwhile, warned that “Volkswagen’s proposals failed to address how the fix would affect the engine’s performance, emissions and vehicle safety,” according to the Journal. “Some experts are concerned that a fix that strengthens the vehicle’s emissions control could reduce fuel economy and overall performance.”

The Board continued its extraordinarily stern treatment of Volkswagen, stemming from a protracted investigation of the company’s secret effort to skirt the rules on emissions tests for diesel vehicles. The Board “said that a recall plan presented in November and December was ‘incomplete, substantially deficient and falls far short of meeting the legal requirements’ to be approved,” as the New York Times reported. And it slammed the company, which was sent reeling this fall and winter by collapsing car sales, for dragging its feet. “The state agency added that VW was taking too long to devise a fix.”

Faulty plans

In its criticisms, the Board singled out problems with the vagueness of the company’s projections based on its own proposed fix. “The Air Resources Board lists a number of reasons why Volkswagen’s proposal was rejected, but it specified that among the most important reasons for the rejection was the fact that ‘the proposed plans do not sufficiently address impacts on the engine, the vehicle’s overall operation, and all related emissions control technologies, including the OBD [On Board Diagnostics] system,'” according to Ars Technica. “In other words, Volkswagen failed to specify whether the fix to reduce nitrogen oxide (NOx) emissions would impact the car’s gas mileage or its projected lifespan.”

That meant the Board felt as if VW had prevented it from doing its job. “As a result, the Board lacked enough information to tell whether the proposed fixes ‘are even technically feasible,’ according to a letter from Annette Hebert, the board’s chief of auto emissions compliance,” the San Francisco Chronicle reported.

Deep trouble

Although the Board’s ruling affects under 76,000 cars, Ars noted, the EPA’s concurrence meant VW continued to face a comprehensive challenge to its business. “VW reiterated that it is working on a solution and is meeting with EPA officials this week in Washington to submit a reworked proposal,” the Washington Post noted. “But the statements from the California board and the EPA demonstrate the lengths VW will have to go to fix its cars and regain the trust of regulators.”

Harm to VW for its malfeasance has been direct and substantial. Sales have fallen 5 percent, as the Post added. “The worldwide scandal has hammered Volkswagen’s sales, prompted hundreds of lawsuits and forced the German automaker’s former CEO to resign, although he insisted he knew nothing about the defeat devices,” according to the Chronicle.

As CalWatchdog reported previously, California’s Air Resources Board was instrumental in blowing the lid off of Volkswagen’s lengthy emissions scam, which quickly drew the attention of national and foreign regulators reaching from Washington, D.C., to Germany. The Board threw down a gauntlet in November, demanding the recall and repair of affected cars and a formal plan from the company as to how it intended to achieve compliance.

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.”