___________________________________________________________

SAM C. HORTON, CHERI BRYANT,
Appellants and Plaintiffs

v.

CITY OF OAKLAND, OAKLAND CITY COUNCIL, ROBERT C.
BOBB, City Manager, City of Oakland, JOSEPH SAMUELS, JR.,
Chief of Police, City of Oakland,
Respondents and Defendants.

APPLICATION FOR LEAVE TO FILE AMICUS CURIAE
BRIEF UNDER RULE 14(C) SUPPORTING APPELLANT
AND PLAINTIFF 1

Description of Amicus Parties 1

1. CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE 1

2. FEAR ENDANGERS AMERICAN RIGHTS FOUNDATION 2

Statement of Interest of Amicus Parties 3

Conclusion 5

BRIEF ON THE MERITS 7

INTRODUCTION 7

I. THE CALIFORNIA LEGISLATURE INTENDED TO MITIGATE THE HARSHEST AND MOST PUNITIVE ASPECTS OF ASSET FORFEITURE LAW 9

A. Forfeiture is a Judicially Disfavored Remedy 9

B. Courts Have Placed Constitutional Limits On Modern Forfeiture Laws 15

C. The California Legislature's Balanced Approach 17

D. The Oakland Ordinance Eliminates the Safeguards And Procedures Mandated by State Law 19

II. THE OAKLAND ORDINANCE IS PUNITIVE AND THUS SUBJECT TO CONSTITUTIONAL SCRUTINY 20

III. THE OAKLAND ORDINANCE AND STATE LAW CONFLICT WITH RESPECT TO THE CONSTITUTIONAL REQUIREMENT OF PROPORITONALITY 22

IV. THE OAKLAND ORDINANCE AND STATE LAW CONFLICT IN THEIR TREATMENT OF INNOCENT OWNERS 29

V. THE OAKLAND ORDINANCE AND STATE LAW CONFLICT IN THE REGULATION OF POTENTIAL LAW ENFORCEMENT ABUSE 36

CASES                                                                                                                                         PAGE

Austin v. United States (1993) 509 U.S. 602 passim

Bennis v. Michigan (1996) 116 U.S. 442 30,31,32,45

Boyd v. United States(1886) 116 U.S. 616 15

Calero-Toledo v. Pearson Yacht Leasing Co.(1974) 416 U.S. 663 11

In re Forfeiture of 1990 Chevrolet Blazer(Fla. App. 2 Dist. 1996) 684 So.2d 197 24

In re Hubbard(1964) 62 Cal.2d 119 7

J.W.Goldsmith-Grant, Jr.-Grant Co. v. United States(1921) 254 U.S. 505 32

Marshall v. Jericho(1980) 446 U.S. 238 43

Miller v. United States(1871) 78 U.S. (11 Wall.) 268 11

Minnesota v. Gonzales(1992) 483 N.W.2d 736 44

Nasir v. Sacramento County Off. of the District Attorney (Nasir)(1992) 11 Cal.App.4th 976 9,10,41

In re One 1993 Dodge Intrepid(Fla. App. 2 Dist. 1994) 645 So.2d 551 24

One 1995 Toyota Pick-up Truck v. District of Columbia(October 1, 1998) 718 A.2d 558 25,26,27

People v. $9,632.50 United States Currency(1998) 64 Cal.App.4th 163 35

People v. Shanndoah(1996) 49 Cal.App.4th 1187 8

The Palmyra(1827) 25 U.S. (12 Wheat.) 1 11

United States v. $191,910.00 in U.S. Currency(9th Cir. 1994) 16 F.3d 1051 16

United States v. 3814 NW Thurman Street, Portland, OR.(9th Cir. 1999) 164 F.3d 1191 24

United States v. Bajakajian(1998) 524 U.S. ___ [141 L.Ed.2d 314] 20,21,23

United States v. Bennis(1995) 516 U.S. 442 19

United States v. James Daniel Good Real Property(1993) 510 U.S. 43 10,13

United States v. Lasanta(2d Cir. 1992) 978 F.2d 1300 10

White v. Florida(1998) No. 98-223 12

STATE & LOCAL AUTHORITIES

Health & Safety Code § § 11350 et seq 22

Health & Safety Code §§ 11350(d) 27

Health & Safety Code § 11357(b) 27

Health & Safety Code § 11469 8,14,36,39

Health & Safety Code § 11470(e) 18

Health & Safety Code § 11470-11495 14

Health & Safety Code § 11488.4(ii)(1), and (2) 18

Health & Safety Code § 11488.5(d)(1) 18,40

Health & Safety Code § 11495 14

Oakland Municipal Code, ch.3, art. 23 (Ordinance No. 12093 C.M.S) passim

Oakland Municipal Code, (Ordinance, § 3-23.07(a), (f) ) passim

Penal Code §§ 19, 647(b) 27

Penal Code § 647(b) 22

Vehicle Code § 22659.5 3,18,34

FEDERAL AUTHORITIES

Act of Mar. 2, 1807, 2 Stat. 426 11

Act of Mar. 22, 1794, 1 Stat. 347 11

Title 21 U.S.C. § 881(a)(4) 17

United States Constitution

Fourth Amendment 12,15

Fifth Amendment 15,22

Eighth Amendment passim

Fourteenth Amendment 22,30

OTHER AUTHORITIES

Arizona Tribune, The Law Goes on a Treasure Hunt 37

Cain, Elizabeth B., The Absurdity of Civil Forfeiture Law Exposed:  Supreme Court Upholds Punishment of Innocent in Bennis v. Michigan and Highlights the Need for Reform 11

Christian Science Monitor, The Governments Big Grab 37

Hyde, Forfeiting Our Property Rights 37,38,39

San Jose Mercury News, Law Fills Coppers Coffers, But Invites Abuse 37

D.Smith, Prosecution and Defense of Forfeiture Cases 9,11,37

Appellant's Opening Brief asks this Court to resolve an apparent conflict between a sweeping vehicle forfeiture ordinance enacted by the City of Oakland and two comprehensive and carefully crafted State statutory schemes addressing the same subject matter. The brief of Amici Curiae seeks to assist the Court in making this determination by examining in greater depth the constitutional and prudential concerns which the State legislature sought to balance against the interests and needs of law enforcement.

The constitutional considerations that underlay the deliberately measured response adopted by the State's legislature should also inform this Court's decision on the question of preemption. The lines drawn by the legislature in crafting these asset seizure statutes necessarily involved fundamental questions of fairness, due process and constitutional protection for private property and the innocent. By disregarding these state protections and standards, Oakland has intruded into an area where "the paramount state concern will not tolerate further or additional local action." In re Hubbard (1964) 62 Cal.2d 119, 128.

The fundamental constitutional and property rights at stake establish that asset forfeiture is a matter of statewide concern. This is evidenced in the Legislature's enactment of "Guidelines for utilization of seizure and forfeiture laws," intended for statewide application. Health & Safety Code § 11469. These Guidelines prescribe strict procedures to which law enforcement must adhere "[i]n order to ensure the proper utilization of the laws permitting the seizure and forfeiture of property . . . ." Id. The importance of these procedural protections and standards was underscored by the Legislature in subsection (j): "Although civil forfeiture is intended to be remedial by removing the tools and profits from those engaged in the illicit drug trade, it can have harsh effects on property owners in some circumstances. Therefore, law enforcement shall seek to protect the interests of innocent property owners, guarantee adequate notice and due process to property owners, and ensure that forfeiture serves the remedial purpose of the law."

The courts likewise have recognized that these procedural safeguards and limits on the punitive use of asset forfeiture signal a significant state interest. People v. Shanndoah (1996) 49 Cal.App.4th 1187, 1191. Cities and counties should not be able to ignore these State-mandated procedures and protections when seizing and forfeiting the property of California's citizenry.
 

I. THE CALIFORNIA LEGISLATURE INTENDED TO MITIGATE THE HARSHEST AND MOST PUNITIVE ASPECTS OF ASSET FORFEITURE LAW

The Legislature's efforts to temper asset forfeiture's unfair, harsh and potentially abusive impact on individual rights are rooted in the constitution, judicial and other learned criticism, and historical experience. see Sen. Comm. on Judiciary, Report on A.B. 114, June 20, 1993, p.8. ("Existing forfeiture statutes are susceptible to abuse.") (Appellant's Request for Judicial Notice ("RJM"), Exhibit W.⁽¹⁾ The Oakland Ordinance operates in total disregard of this accumulated experience and wisdom.

A. Forfeiture is a Judicially Disfavored Remedy

Innumerable courts have stated that forfeiture is a harsh and oppressive sanction which is disfavored in the law: "[C]ourts must guard against the abuse of forfeiture." United States v. $31,990 (2d Cir. 1993, 982 F.2d 851, 856. See generally, 1 D. Smith, Prosecution and Defense of Forfeiture Cases ("Smith") (1992) ¶ 3.02; nn.1, 2.1 While forfeitures have some salutary purposes, they are also the most draconian and harshest of all the laws respecting the private ownership of property. Nasir v. Sacramento County Off. of the Dist. Atty. ("Nasir") (1992) 11 Cal.App.4th 976, 985. "[S]trict compliance with the letter of the law by those seeking forfeiture must be required." Nasir, 11 Cal.App.4th at 986, citing United States v. 38,000.00 in U.S. Currency (11^th Cir. 1987) 816 F.2d 1538, 1547, and cases cited therein. "Due process protections ought to be diligently enforced, and by no means relaxed, where a party seeks the traditionally-disfavored remedy of forfeiture." Nasir, 11 Cal.App.4th at 986, and cases cited therein. See also, United States v. James Daniel Good Real Property (1993) 510 U.S. 43, 56: ( "It makes sense to scrutinize government action more closely when the State stands to benefit."); United States v. Lasanta (2d Cir. 1992) 978 F.2d 1300, 1305 ("it would indeed be a Pyrrhic victory for the country, if the government's imaginative use of that weapon [civil forfeiture] were to leave the constitution itself a casualty.")

Even decisions upholding the government's forfeiture authority have been hedged with reservations and misgivings. Courts have reluctantly adopted the legal doctrines - which are recognized as fictions - by which civil or in rem forfeiture, in particular, has stripped property owners of traditional constitutional protections and lessened the government's burden of proof. Chief among these is the personification fiction. In an in rem forfeiture, it is "the thing which is here primarily considered as the offender, or rather the offense is attached primarily to the thing." Austin v. United States (1993) 509 U.S. 602, 615-16, cases cited therein. The property is "treated as the offender," without regard to the owner's conduct. Calero-Toledo v. Pearson Yacht Leasing Co. (1974) 416 U.S. 663, 664. Under a strict application of this doctrine, the guilt or the innocence of the owner becomes inconsequential. Id.

The harsh characteristics of in rem forfeiture developed during this nation's formative years as an expression of economic and political necessity. 1 D. Smith, Prosecution and Defense of Forfeiture Cases, ¶ 2.01, p. 2-2; Cain, Elizabeth B., The Absurdity of Civil Forfeiture Law Exposed: Supreme Court Upholds Punishment of Innocent in Bennis v. Michigan and Highlights the Need for Reform, 47 DePaul L.Rev. 667, Spring 1998. The early forfeiture statutes targeted offenses such as piracy, (The Palmyra (1827) 25 U.S. (12 Wheat.) 1), slave smuggling (Act of Mar. 22, 1794, 1 Stat. 347; Act of Mar. 2, 1807, 2 Stat. 426),⁽²⁾ and treason, (Miller v. United States (1871) 78 U.S. (11 Wall.) 268). These statutes were upheld as the legitimate exercise of the national sovereign's admiralty, customs and war powers. With respect to these historical uses of forfeiture, it can be said, at least, that the harshness of the remedy bore some relationship to the magnitude of the misconduct and the sovereign interests involved.

In both conception and practice, the Oakland Ordinance exemplifies forfeiture in its most onerous and disfavored form. Typically, under the Ordinance, vehicle seizures result from reverse sting operations where officers pose as petty drug dealers and prostitutes. See, Joint Appendix⁽³⁾ ("JA")5 at 54-55; JA 10 at 102; RJM, Exs. X,Y and Z. When a motorist approaches one of these undercover police officers, his or her vehicle is instantly seized without warrant and the occupants of the vehicle are either arrested or left to their own devices to make their way home, which is often at a considerable distance.⁽⁴⁾ Oakland Tribune, April 9, 1999: "'Beat Feet' Seizure Law Claims 10 Vehicles; Police Stab Drivers in Solicitation Sting," attached hereto as Appendix of Amicus Curiae ("AAC"), Ex. A; Advisory: "Oakland Sting Out to Nab Drug Buyers, Sex Solicitors." (AAC, Ex. B.) Both the alleged malefactor and any other registered owner of the vehicle are given notice of the intended forfeiture. To avoid summary administrative forfeiture, any one asserting an interest in the vehicle must file a verified claim within 10 days of actual receipt of the notice. A claim form is attached to the notice. Oakland Municipal Code, ch.3, art. 23 (Ordinance No. 12093 C.M.S) ("Ordinance"), § 3-23.07(c)(g) - 3-23.08(a).

(RJM, Ex. A.)

If a verified claim is timely submitted, a Petition for Forfeiture is filed in the Superior Court. There is no right to counsel at the judicial forfeiture hearing. There is no requirement of a conviction of the underlying criminal charge. To prevail, the prosecution simply needs to prove by a preponderance of the evidence that the vehicle was misused in one of the ways specified in the Ordinance. No defense of innocence may be raised by an owner whose vehicle was used unlawfully without his or her actual knowledge or permission. Ordinance, § 3-23.07(a),(f).

If no claim is filed, the vehicle is immediately declared forfeited. In all cases where a vehicle is forfeited, it will be sold either to a third-party or to its owner for a cash settlement determined by the prosecuting agency. The prosecuting agency and participating law enforcement agencies divide the proceeds 50/50 with virtually no limitation on how these monies are to be used or accounted for.

These procedures ensue under the Ordinance no matter how minor the transgression, how valuable the vehicle or how essential the vehicle is to the owner's livelihood or the well-being of his or her family. Indeed, drug forfeitures under the Ordinance are triggered by the purchase of $10.00 bags of bunk marijuana. (RJM, Exs. X,Y and Z).

Comparing these procedures with the Guidelines set forth in Health & Safety Code § 11469, as well as the substantive provisions of the drug asset forfeiture law (Health & Safety Code §§ 11470-11495), underscores the substantial risks the Ordinance poses to the established rights and interests of the transient citizens and innocent vehicle owners of the State.

B. Courts Have Placed Constitutional Limits on

Modern Forfeiture Laws

In the modern era, the use of civil and administrative forfeitures has greatly expanded as a means of combating a widening array of crimes. As in rem forfeiture laws have proliferated, so have the shocking abuses which are an inevitable consequence of the exercise of such unregulated police power. In response, legislatures and courts have been more willing to pierce forfeiture's fictions and subject forfeiture procedures to fundamental constitutional safeguards.

The foundation for the modern approach to forfeiture is found in Boyd v. United States (1886) 116 U.S. 616. In Boyd, the Supreme Court held that the Fourth Amendment prohibition against unreasonable searches and seizures and the Fifth Amendment privilege against self-incrimination were applicable to civil forfeiture proceedings. In recognizing the quasi-criminal nature of civil forfeiture, the Court necessarily rejected the proposition that an in rem forfeiture proceeding "is not, in effect, a proceeding against the owner of the property." 116 U.S. at 637. As the Court observed, "[P]roceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal." Id. at 634. See also, United States v. $191,910.00 in U.S. Currency (9th Cir. 1994) 16 F.3d 1051, 1068-69 ("We are particularly wary of civil forfeiture statutes, for they impose 'quasi-criminal' penalties without affording property owners all of the procedural protections afforded criminal defendants. The relative ease of obtaining forfeitures may tempt the government to seek criminal law enforcement objectives through these nominally 'civil' proceedings." [internal citations omitted]).

It took nearly 100 years and the excesses of the "War on Drugs," for the Supreme Court to expand upon its analysis in Boyd. In a series of landmark cases culminating in Austin v. United States (1993) 509 U.S. 602, the Court rejected the legal fiction that civil forfeitures are merely actions against property and therefore totally exempt from constitutional scrutiny.

The specific question addressed in Austin was whether the Eighth Amendment was applicable to civil, in rem forfeiture actions. In deciding that the Excessive Fines Clause of the Eighth Amendment applied to drug-related forfeitures of property, the Court opined, without dissent, that "however the theory of statutory in rem forfeiture may be expressed, such taking of lawful property must be considered, in whole or in part, punitive." (J. Scalia, concurring). 509 U.S. at 625.

Apropos of the Oakland Ordinance, all nine justices agreed that civil forfeitures of conveyances used to facilitate a drug offense are punishment.⁽⁵⁾ Five justices went further, holding that most in rem forfeiture statutes have always been understood, at least in part, as punishment. Id., at 614.

C. The California Legislature's Balanced Approach

In 1994, the California Legislature amended the State's drug forfeiture law to take into account the constitutional concerns addressed in Austin, supra, and related decisions. These concerns did not arise in the abstract, but rather, in the context of reports of flagrant abuses resulting from the predecessor scheme's failure to include adequate safeguards and oversight. (See, Argument V, infra). The Legislature concluded that the principal defects in the prior law were its failure to (1) adequately protect the interests of innocent owners; (2) hold the government to a meaningful burden of proof; and (3) require a criminal conviction as a predicate to forfeiture.

The Legislature enacted reasonably tailored measures to cure each of these defects so as "to ensure that peoples' property rights, and due process rights are protected." Bill Analysis of A.B. 114, Assem. Comm. on Public Safety, April 20, 1993, p. 1. (JA 6, 59). With respect to vehicle forfeitures, the Legislature imposed the following strict requirements: (1) proof beyond a reasonable doubt that the vehicle was used or intended to be used to commit a specified drug crime (Health & Safety Code § 11488.4(ii)(1), and (2) a conviction for the predicate offense. Health & Safety Code § 11488.4(i)(3). As importantly, the amended law contained a provision strengthening the protection of innocent owners, by requiring proof of consent with actual knowledge that the property would be used for an illegal purpose. Health & Safety Code § 11488.5(d)(1). Section 11470 already imposed minimum drug quantity requirements for forfeiture of conveyances. The 1994 amendment increased the threshold amounts. Health & Safety Code § 11470(e).

The Legislature's approach to the seizure of vehicles used in prostitution-related crimes was similarly balanced and protective of citizen's rights. As the legislative history, discussed in detail in appellant's brief, shows, the Legislature expressly rejected forfeiture as an unduly harsh sanction for the underlying misconduct. Instead, the Legislature provided for limited impoundment of vehicles used in the solicitation of prostitution. Vehicle Code § 22659.5.

D. The Oakland Ordinance Eliminates the Safeguards and Procedures Mandated by State Law

The City of Oakland clearly decided that it should be free to conduct vehicle forfeitures without affording California citizens any of the protections afforded by State law. Emboldened by the U.S. Supreme Court's decision in United States v. Bennis (1995) 516 U.S. 442, discussed below, the City enacted its vehicle forfeiture Ordinance authorizing forfeiture and abatement of vehicles "used" to solicit an act of prostitution, or to acquire or attempt to acquire a controlled substance. Any California citizen whose vehicle is driven into Oakland is at risk of having his or her vehicle forfeited because the driver momentarily yielded to temptation or entrapment. And soon, if the validity of the Oakland Ordinance is sustained, this State will be a patchwork of conflicting local laws allowing the confiscation of vehicles for every conceivable minor or petty offense.

In choosing to go beyond the traditional remedies for nuisance abatement by establishing a vehicle forfeiture program, Oakland has crossed the line between matters of local autonomy and affairs of statewide and constitutional concern. Any vehicle seizure under the Oakland Ordinance would be subject to the challenge that it was unconstitutional as "grossly disproportional" to the gravity of the underlying misdemeanor offense. .See, United States v. Austin, supra, 509 U.S. 602; United States v. Bajakajian (1998) 524 U.S. --, 141 L.Ed.2d 314. The equally serious problem of punishing someone who is guilty of no wrongdoing also arises under the Ordinance, as do questions about the adequacy of the remedies afforded property owners.

Finally, the fact that the proceeds of forfeiture under the Ordinance go directly to the police or local prosecutors raises grave policy questions as well as due process concerns. The dangers that the revenue potential of forfeiture will become a driving force in its utilization by law enforcement, has been a central theme in the controversy about forfeiture. These constitutional and policy issues, which were keenly debated by the California Legislature and determinedly ignored by Oakland, establish the problematic nature and potentially adverse impact of unregulated local autonomy over asset forfeiture.

II. THE OAKLAND ORDINANCE IS PUNITIVE AND THUS SUBJECT TO CONSTITUTIONAL SCRUTINY

The stated objective of the Oakland Ordinance is nuisance abatement - i.e., to deter persons from driving into local neighborhoods for prostitution or drugs. The City's classification of the Ordinance is not dispositive, however, in determining its character for constitutional purposes.

As recent United States Supreme Court decisions make clear, forfeiture statutes, irrespective of label, are at least partly punitive, and thus subject to constitutional limitations. As the Court noted in Austin, "'The notion of punishment as we commonly understand it, cuts across the division between the civil and the criminal law [cites].' 'It is commonly understood that civil proceedings may advance punitive as well as remedial goals, and conversely that both punitive and remedial goals may be served by criminal penalties [citations].' '[A] civil sanction that cannot fairly be said only to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term [internal cites omitted].'" 509 U.S. at 610. See also, United States v. Bajakajian (1998) 114 L.Ed.2d 314, 326 n. 4 ("Even if the government were correct in claiming that the forfeiture of respondent's currency is remedial in some way, the forfeiture would still be punitive in part.")

The Oakland Ordinance's predominant effect, notwithstanding its professed purpose, is to punish the driver of the seized vehicle, and collaterally, any innocent person with an interest in the asset. Forfeiture under the Ordinance is triggered by either a solicitation of prostitution or an attempt to purchase drugs - crimes punishable by incarceration and fines under Penal Code § 647(b) and Health & Safety Code § § 11350 et seq., respectively. The value of a vehicle seized under the Ordinance is determined by chance or law enforcement selection, (Argument V, infra), and not by the amount of money involved in the underlying criminal transaction or the costs of enforcement to the locality. Accordingly, the Due Process Clause of the Fifth and Fourteenth Amendments and the Excessive Fines Clause of the Eighth Amendment to the United States Constitution apply to forfeitures under the Ordinance. As shown below, the State Legislature grappled with these constitutional concerns; Oakland has ignored them.

III. THE OAKLAND ORDINANCE AND STATE LAW CONFLICT WITH RESPECT TO THE CONSTITUTIONAL REQUIREMENT OF PROPORTIONALITY

The purpose of the Eighth Amendment is to limit the government's power to punish. Austin, at 609. "The Excessive Fines Clause limits the government's power to extract payments, in cash or in kind, 'as punishment for some offense.'" Austin, at 609-610, citing United States v. Halper (1989) 490 U.S. 435, 447-48. Under the analysis in Austin, forfeiture under the Oakland Ordinance indisputably works as a fine and therefore is subject to Eighth Amendment limitations. See, J. Scalia, concurring, 509 U.S. at 623-4 ("forfeiture," "fine" and "payment" are synonymous.)

Austin did not reach the question of what test or standard should be applied to determine whether a forfeiture is excessive. Five years later, in United States v. Bajakajian (1998) supra, the Supreme Court was ready to articulate a test. In the words of Justice Thomas, writing for the Court, the "touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish." 141 L.Ed.2d at 329. The Court then held that the amount of a forfeiture is excessive under the Eighth Amendment if it is grossly disproportional to the gravity of the underlying offense. 331. Although Bajakajian was a criminal case, the Court made it clear that the same analysis would apply to "punitive" civil forfeitures that are "fines" under the Excessive Fines Clause. (court has held that modern statutory forfeiture is a "fine" for Eighth Amendment purposes if it constitutes punishment even in part, regardless of whether the proceeding is styled in rem or in personam) 141 L.Ed.2d at 328, n. 6.

Federal and state courts have followed Bajakajian in focusing on several factors to determine whether a forfeiture is disproportionate. Chief among these factors is the specific culpability of the offender, rather than the gravity of the fine in the abstract. United States v. 3814 NW Thurman Street, Portland, OR. (9th Cir. 1999) 164 F.3d 1191, 1997-98. One relevant test of an offense's gravity is the range of the criminal penalties that the Legislature has authorized. Another more specific measure is the fine actually imposed in any related criminal case. The extent of the harm actually caused is the final Bajakajian factor. Id., at 1198.

A number of recent cases illustrate the application of the proportionality test to vehicle forfeitures. In In re Forfeiture of 1990 Chevrolet Blazer (Fla. App. 2 Dist. 1996) 684 So. 2d 197, 199, the owner of a 1990 Chevrolet Blazer worth $10,000 was caught with 27 grams of marijuana in his car. He pleaded no contest to a third-degree felony punishable by no more than five years imprisonment and by a fine of no more than $5000. The defendant was placed on probation for two years. In a subsequent civil action, the court concluded that the forfeiture was excessive because the car was worth twice as much as the maximum criminal fine that could be imposed for the offense, "combined with the somewhat attenuated relationship between the property and the offense." A Florida appellate court held that a forfeiture of a new $21,339 Dodge would constitute an excessive fine where the driver possessed $20 worth of crack cocaine. In re One 1993 Dodge Intrepid (Fla. App. 2 Dist. 1994) 645 So.2d 551.

More apposite yet is the District of Columbia Court of Appeals decision in One 1995 Toyota Pick-up Truck v. District of Columbia (October 1, 1998) 718 A.2d 558. (AAC, Ex. C.) In that case the claimant had solicited a supposed prostitute (actually an undercover police officer) in violation of the District's Safe Streets Forfeiture Act. As a first offender, he was subject to a maximum statutory penalty of $300 but was fined $150. In addition, pursuant to the statute, the District brought an in rem forfeiture action against the truck from which the claimant made the solicitation.

The Court of Appeals reversed the forfeiture of the truck, as a constitutionally excessive fine. First, the Court concluded that, under Austin, the forfeiture of the pick-up truck served, at least in part, as punishment for claimant's solicitation offense and was therefore a "fine" subject to Eighth Amendment scrutiny. Then, on applying the proportionality test of Bajakajian, the Court noted that forfeiting a vehicle valued at $15,500 inflicted a penalty on the claimant on the order of 50 times the fine authorized by the criminal statute and one hundred times the fine actually imposed. 718 A.2d at 566. ("Solicitation for prostitution, particularly for a first conviction has historically been treated as a minor crime. . . .") Id. at 565.These ratios were comparable to the seventy-to-one figure considered grossly disproportional in Bajakajian and are consistent with the excessiveness determinations of other federal courts.

While recognizing that the truck's driver fit in the class of persons for whom the statute was principally designed, the Court in One 1995 Toyota Pick-up Truck concluded that "the driver could not be made to bear grossly disproportionate responsibility for the problem of prostitution in the District or for the attendant consequences of that crime, such as traffic congestion, depressed property values, and reduced quality of life; he is, at bottom, one individual who on one occasion attempted to retain a prostitute." Id., at 566 (emphasis added). "The forfeiture here imposes punishment on him which greatly outweighs his particular contribution to these multi-faceted problems." Id. Two other factors swayed the Court: (1) that the forfeiture of the pick-up truck could not fairly be said to compensate the District for any loss associated with the claimant's crime; and (2) that the vehicle played a significant role in the maintenance of the claimant's livelihood. Id.

The California Legislature enacted several provisions designed to prevent grossly disproportional forfeitures, with particular focus on passenger vehicles. When the drug forfeiture law was amended in 1982 to subject passenger vehicles "used as an instrument to facilitate" specified drug offenses, the Legislature took some steps to limit the reach of that law. The amendment fixed a minimum threshold amount of drugs which must be involved in the offense to allow a vehicle to be forfeited. Stats. 1982, ch. 1280, § 1.5, p. 4733 (Senate Bill 518). The 1982 amendments, which were reinstated in 1994, also prohibited forfeiture of the community property interest of a person other than the defendant if the vehicle "is the only vehicle available to the defendant's immediate family." Id. The "small time seller []" with "five baggies of marijuana" could not lose his car under State law. The one-time buyer of a $10.00 baggie of marijuana will have the car he or she is driving forfeited under the Oakland Ordinance, without regard to whether the owner of the car is innocent, or has a community property interest and owns no other vehicle. Appendix.

As it is enforced, the Oakland Ordinance will inevitably run afoul of Bajakajian and the Eighth Amendment. The maximum statutory fines for the offenses which trigger forfeiture under the Ordinance range from as little as $100, for possession of not more than 28.5 grams of marijuana (Health & Safety Code § 11357(b), to a statutory maximum of $1000 for other misdemeanors involving solicitation and drug possession. See, e.g., Penal Code §§ 19, 647(b); Health & Safety Code §§ 11350(d), 11357. This range reflects the State's monetary measure of the gravity of the targeted offenses. Thus, unless Oakland were to confine itself to the seizure of only low-value vehicles, it is bound to produce grossly disproportional forfeitures.⁽⁶⁾

The Ordinance will have an irrational, disproportional impact in another sense, in that it treats more harshly persons involved in minor, transient offenses than those involved in major drug trafficking. In the case of a small drug purchase by a motorist from a drug dealer who has transported the drugs by car to the scene of the sale, the vehicle driven by the motorist will be forfeited under the Ordinance, even if it belongs to his spouse or another innocent claimant, while the interests of innocent joint owners in the drug dealer's car will be fully protected under State law. The motorist and his family will lose their car; the drug dealer and his family will keep theirs. It is not that the outcome under State law is unfair or misguided; but rather that the results under the Ordinance are, as Justice Thomas put it in his concurring opinion in Bennis, "intensely undesirable." In short, by ignoring the limitations of state law, Oakland has placed its vehicle forfeiture program on a collision course with the constitutional prohibition against disproportionate and excessive fines.

IV. THE OAKLAND ORDINANCE AND STATE LAW CONFLICT IN THEIR TREATMENT OF INNOCENT OWNERS

There is no question that for most courts, legislators and commentators, as well as the general public, the most offensive aspect of historical in rem forfeiture statutes is their failure to protect the rights of innocent property owners. Both the United States Congress and the California Legislature have sought to remedy this flaw by allowing for an innocent owner defense in their drug forfeiture laws. On the federal front, United States Representative Henry Hyde, hardly thought to be soft on drugs or crime, has taken the lead in seeking to reform the federal civil forfeiture scheme to provide greater protections for the interests of property owners who did not know of or control the unlawful use of their assets. Rep. Henry Hyde, Is Your Property Safe from Seizure, Cato Institute, 1995; 1 D.Smith, Prosecution and Defense of Forfeiture Cases, ¶ 1.02, 1-30-1.

In Austin v. United States, supra, the Court discussed the innocent owner defense as related to its Eighth Amendment analysis. After reviewing historical precedents, the Court observed that the personification fiction had generally been understood to rest on the notion that the owner who allowed his property to become involved in an offense had been negligent. 509 U.S. at 616. " [F]orfeiture of a truly innocent owner's property would raise "serious constitutional questions." 509 U.S. at 617. The Court found it implicit in its earlier decisions that the guilty-property fiction could not justify forfeiture when the owner of the property had done all that reasonably could be expected to prevent the unlawful use of his property. 509 U.S. at 618.

Austin did not reach the constitutional question whether forfeiture of the interest of an innocent owner offended the Due Process Clause of the Fourteenth Amendment. That issue was directly presented to the Court in Bennis v. Michigan (1996), 116 U.S. 442, 134 L.Ed.2d 68. It should be noted that the City of Oakland invoked Bennis in both framing and defending its Ordinance. (JA 10, at 110). The City's reliance on Bennis is misconceived. Although the Court in Bennis upheld Michigan's forfeiture of a vehicle involved in soliciting prostitution without an offset from the proceeds for the innocent co-owner of the vehicle, it did so in a close decision (5-4) limited by a set of distinguishing circumstances which do not apply to this case. Oakland seized on Bennis to support a forfeiture enactment at the extreme margins of the law. Read more judiciously, Bennis underscores the potential threat that civil forfeiture poses to individual property rights.

Bennis involved a Michigan (not local) abatement statute which authorized the forfeiture of a vehicle used in violation of the State's indecency laws. Mr. Bennis was arrested in the family car while engaged in sexual activity with a prostitute. Mrs. Bennis, who co-owned the car, protested the forfeiture of her interest on the ground that when she entrusted her husband with the car she had no knowledge that he would misuse it. The trial court permitted no offset for Mrs. Bennis' interest. In reaching this disposition, the trial judge recognized the remedial discretion he had under Michigan case law. He took into account both the couple's ownership of another automobile and the low value of the car in declining to order payment of one-half of the sale proceeds to Mrs. Bennis. 134 L.Ed.2d at 73-74.

Mrs. Bennis challenged the Michigan nuisance abatement statute on the ground that it failed to provide any defense for innocent owners like her. Her constitutional argument was based on substantive due process and the Takings Clause. While acknowledging the appeal of Mrs. Bennis' arguments, the Court, in a very narrowly written decision turning on the specific facts of the case, rejected her claims, relying largely on historical cases "too firmly fixed in the punitive and remedial jurisprudence of the country to be displaced." Id. at 79, citing J. W.Goldsmith-Grant, Jr.-Grant Co. v. United States (1921) 254 U.S. 505, 511.

Responding to Mrs. Bennis's further contention that the Court's far more recent decision in Austin - limiting the scope of forfeitures under the Excessive Fines Clause - would be difficult to reconcile with any rule allowing truly innocent persons to be punished by civil forfeiture, the Court emphasized that the Michigan statute, unlike the statute in Austin, involved an equitable action in which the trial judge had "discretion to consider alternatives to abating the entire interest in the vehicle." Nonetheless, because no claim of excessiveness was raised by Mrs. Bennis, the Court did not undertake an analysis under the Eighth Amendment, and has yet to do so.⁽⁷⁾

The Justices in Bennis were sharply divided in their views. Even Justices joining in the majority opinion showed little enthusiasm for the result. As the majority noted, "evasion of the normal requirement of proof before punishment might well seem 'unfair.'" Justice Thomas, concurring, was more explicit: "One unaware of the history of forfeiture laws and 200 years of this Court's precedent regarding such laws might well assume that such a scheme is lawless - a violation of due process." Id. at 79-80, citing J.W. Goldsmith, Jr.-Grant Co, 254 U.S. at 510. ("If this case were the first of its kind, it and its apparent paradoxes might compel a lengthy discussion to harmonize the [statute at issue] with the accepted tests of human conduct . . . There is strength . . . in the contention that . . . [the statute at issue] seems to violate the justice which should be the foundation of the due process of law required by the Constitution.") (Emphasis added).

Moreover, there is a crucial distinction between the Oakland Ordinance and the State statute reviewed in Bennis. It was critical to the decisions of both the United States and Michigan Supreme Courts in upholding the forfeiture in Bennis that the proceeding was an "equitable action" under State law. As viewed by the Justices, the fact that the trial court recognized that it had "remedial discretion" to order equitable relief from the forfeiture both reinforced the remedial nature of the .proceeding and mitigated any "blatant unfairness" to Mrs. Bennis. Id. at 73, 82.

Abatement under the Oakland Ordinance is strictly a proceeding at law. The trial judge has no discretion under the Ordinance or general California law to consider any "alternatives [to] abating the entire interest in the vehicle." Id. at 78. Ordinance, § 3-23.02 ("Upon proof that the property was used for any of the purposes set forth in Section 3-23.01, the court shall declare the property a nuisance and order that the property be forfeited, sold, and the proceeds distributed as set forth in Section 23.09") (emphasis added).

The Ordinance's recent amendment providing for a cash settlement payment in exchange for the forfeited vehicle is not the equivalent of a trial court's remedial discretion, as described in Bennis. (Ordinance, Sect. 3-23.09). The Oakland provision vests unilateral authority in the prosecutor, to decide whether or not to remit the property and for what price, without any impartial judicial determination of the equities. It does not create a safe harbor for innocent owners, but rather, a device for rapidly converting an illiquid asset into cash for local law enforcement.

Contrasting the Ordinance with Vehicle Code § 22659.5 -- providing for temporary impoundment, not forfeiture, of vehicles used in the solicitation of prostitution -- underscores that the Ordinance is predominantly punitive. Impoundment is a genuinely remedial sanction because the penalty exacted, the fee for storage, is directly proportional to the costs incurred by the government. Vehicle seizures, on the other hand, impose a penalty which is randomly determined by the value of the seized vehicle without any relationship to the gravity of the offense or the government's expenses.

Because it provides for no mitigating judicial discretion to compensate innocent owners for their interests or reduce the amount of grossly disproportional forfeitures, the Oakland Ordinance is not insulated from either due process or Eighth Amendment scrutiny by Bennis or any of its antecedents.

The Bennis decision has been the subject of extensive and well-reasoned criticism. See, People v. $9,632.50 United States Currency (1998) 64 Cal.App.4th 163, 172 n.6, and law review articles cited therein. Thus, it is unlikely that Bennis is the Supreme Court's last word on the innocent owner defense, especially when the decision did not reach the question posed by Justice Stevens: whether forfeiture of an innocent owner's interest is subject to the limitations of the Excessive Fines Clause. ("[T]he forfeiture of petitioner's half-interest in her car is surely a form of 'excessive punishment.'")

The California Legislature has chosen a different course than the State of Michigan by enacting a statutory innocent owner defense, instead of leaving the protection of innocent ownership interests to judicial discretion. The legislative history of Health & Safety Code § 11469 makes it clear that protecting individual property rights was a predominant purpose in amending the State's forfeiture laws: "The purpose of this bill is to put in place the necessary protections to ensure that people's property rights, and due process rights are protected. The war on drugs should not be won at the expense of our hard won freedoms." Bill Analysis of A.B. 114, Assem. Comm. on Public Safety, Bill Analysis of A.B. 114, April 20, 1993, p. 1.

Thus, unless Bennis is to be interpreted as a license for every locality to enact punitive forfeiture measures that strip California citizens of their property and the protections expressly afforded them by the Legislature, Oakland is preempted from enacting its own ordinance which conflicts with the State's controlling and comprehensive scheme.

V. THE OAKLAND ORDINANCE AND STATE LAW CONFLICT IN THE REGULATION OF POTENTIAL LAW ENFORCEMENT ABUSE

With the emergence of forfeiture laws at every level of government, police and prosecutorial agencies are in the position of operating under conflicts between their economic self-interest and traditional law enforcement objectives. [1 D.Smith, Prosecution and Defense of Forfeiture Cases, ¶ 1.02, p. 1-23, n. 10 (The Government's Big Grab (5-part series Christian Science Monitor; Law Fills Copper's Coffers, But Invites Abuse (9-part series San Jose Mercury News); Policing for Profits (Arizona Tribune); The Law Goes on a Treasure Hunt (N.Y. Times Magazine); Commentators have long noted that civil forfeitures are a "profitable kind of revenge." 1 D.Smith, Prosecution and Defense of Forfeiture Cases, ¶ 1.02, p. 1-19, n.4.] As Congressman Henry Hyde observed: "Allowing law enforcement officers to keep the cash or property they confiscate is "an invitation to uncontrollable abuse." Hyde, Forfeiting Our Property Rights, p. 30. The problem is most prevalent at the local level, where law enforcement budgets have become dependent on forfeiture proceeds and there is no legislative or judicial oversight as to how the proceeds are spent. Id.

Representative Hyde's book, as well David Smith's authoritative two-volume treatise on the Prosecution and Defense of Forfeiture Cases, document flagrant abuses by local law enforcement officers. In every such instance, forfeiture's economic incentives have distorted law enforcement priorities and values.

One of the most notorious cases, which influenced the thinking of the California Legislature, involved a 1992 raid of a 200-acre ranch in Malibu, California. Los Angeles County Sheriff's deputies killed the ranch's owner Donald Scott while executing a search warrant for marijuana. No marijuana was found growing on the property, and no evidence was found to indicate that marijuana had ever grown there. A subsequent investigation by the Ventura County District Attorney's office concluded that the primary motivation for the raid was the desire of law enforcement agencies to seize the ranch, sell it and divide the proceeds. (JA 6 at 60-61.)

California was directly confronted with the corrupting effects of forfeiture in the cases of twelve Los Angeles Police Officers who were convicted of stealing large amounts of cash and property seized for forfeiture during drug raids. Hyde, Forfeiting Our Property Rights, pp. 37-38. But it is not only rogue officers who have been compromised by the bounty of forfeiture, whole departments have been under pressure to seize assets and cash to pay salaries, purchase equipment and generally fund their operations.

Articles in newspapers and other publications have reported hundreds of forfeiture cases in which the suspects were never charged with a crime, or their cases were dismissed, but their property was forfeited. Henry, "The Thin Green Line/Law Enforcement Agencies Seize Millions of Dollars in Cash and Property Every Year. The Question Is What do They Do With It?", California Lawyer Magazine, September 1994, p. 46. County audits have consistently pointed to the lack of accountability and controls over the handling of forfeited property and cash. Id.

Abuses involving vehicle stops and seizures have also been commonplace. Highly publicized cases in Florida and Louisiana, while not typical, showed how easily vehicle stops could be manipulated to maximize the financial recovery to the police. In one Florida County, sheriff's officers engaged in a pattern of vehicle stops on a main highway which resulted in substantial cash seizures from intimidated motorists. Although much of the cash was seized illegally, the Sheriff was able to keep a large percentage of the money because motorists were usually not able to hire attorneys to litigate the forfeitures.

In cases involving vehicle seizures, other patterns of abuse have emerged. In the trials of the Los Angeles police officers, mentioned above, testimony showed that as cars became a source of operating funds, officers were directed to seize only newer vehicles with higher resale value. Id.

The California Legislature recognized that law enforcement's financial dependence on revenue from forfeitures creates a potential for the types of abuses described above. Health & Safety Code §11469(a) ("Potential revenue must not be allowed to jeopardize the effective investigation and prosecution of criminal offenses, officer safety, the integrity of ongoing investigations, or the due process rights of citizens.") The Legislature responded with the 1994 amendments to the State's drug asset forfeiture law. The new law carefully balanced the interests of effective law enforcement and the rights of individual property owners. The law reinstated a requirement of a criminal conviction as a condition of forfeiture. It has also set the formula for distributing the proceeds of forfeiture: 65% to the local agency, with 15% earmarked for anti-drug programs, 10% to the prosecutorial agency, 24% to the General Fund and 1% to forfeiture training. As importantly, the new law imposed strict auditing and reporting requirements on local agencies.

The Oakland Ordinance is a throwback to the era of unregulated forfeitures and potentially unchecked abuses. Features of the Ordinance virtually ensure that abuses will occur. Procedures under the Ordinance are calculated to hinder, rather than promote, the litigation of the forfeiture action. The State forfeiture law allows owners 30 days to file a claim to seized property. Health & Safety Code § 11488.5(a)(1). The claim, in all forfeiture proceedings, is jurisdictional. The failure to file a timely claim results in summary administrative forfeiture. Initially, California allowed only 10 days for the filing of claims, but increased the claim period to 30 days because it was practically impossible for property owners to meet the deadline. (1994 Amendment).

In Nasir v. Sacramento County Off. of the Dist. Atty., supra, 11 Cal.App.4th 976, the Court emphasized that forfeiture statutes must "afford due process of law to those persons who are subject to their provisions and provide them with an adequate remedy to protect their property rights." The Court further commented that the 10-day time limit for filing a claim, as previously provided by State law was, "extremely abbreviated."

The Oakland Ordinance reverts to the demonstrably inadequate 10 day time limit. As noted in Nasir, failure to afford property owners a meaningful opportunity to assert and litigate their claims may be a direct due process violation, and is certainly an invitation to the types of abuses chronicled above.

Ten days is not enough time to find a knowledgeable lawyer, much less one willing to take a case of such complexity and potentially small value. There is no right to appointed counsel in forfeiture actions, and in the typical vehicle forfeiture case, the lawyer's fees would be greater than the value of the car. Where the property owner resides out of the locality in which the property was seized, which is common with vehicle seizures, the time to file the claim may be shortened even further and litigating the forfeiture may be prohibitively costly and time-consuming.⁽⁸⁾ In many instances, it may be more economical for the owner simply to walk away from the vehicle or pay whatever price the locality demands for its return, rather than bear the expense and stress of pursuing the matter in court. These practical obstacles to litigation mean that abuses of the Ordinance are far less likely to be uncovered and remedied. Indeed, Oakland can avoid having any judge or lawyer examine its actions under the Ordinance by dropping the criminal charges, knowing that in many cases there will likely be no separate civil litigation of the forfeiture for the reasons discussed above.

Because the Oakland program typically involves reverse sting operations, law enforcement officers have maximum control over which vehicles are selected for seizure. (RJN, Exs. X, Y and Z). Thus, the incentive to target and seize more expensive vehicles is built into the law.

The 50/50 division of proceeds between law enforcement and prosecution is also problematic. Courts and commentators have long recognized the relationship between abuses and agency dependence on revenue from forfeiture. Further, commentators have suggested that prosecutors and police are bound by at least some due process limitations on conflicts resulting from officials' personal or financial stakes in their decisions. Blumenson & Nilson, Contesting Government's Financial Interest in Drug Cases, Criminal Justice, Winter 1999, at 5-6. As observed by the U.S. Supreme Court in Marshall v. Jericho, (1980) 446 U.S. 238, 249-50):

A scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional concerns.

Prosecutors are the big winners under Oakland's scheme, raising their division of forfeiture proceeds from 10% under the State statute to 50% under the Ordinance.⁽⁹⁾ Law enforcement's potential revenues also rise under the Ordinance because it allows complete circumvention of the restrictions imposed by State law.

Oakland's Ordinance cannot be tested in isolation. The State Legislature, as well as numerous Judges and commentators, have recognized that when financial self-interest motivates law enforcement decisions, the potential for abuse is increased. It is against this background of both potential and actual abuses that the California Legislature decided to subject drug forfeitures to reasonable limitations and regulations.

In Minnesota v. Gonzales (1992) 483 N.W.2d 736, cited in Appellants' brief, the Minnesota Court of Appeals considered whether a municipal ordinance authorizing forfeiture of vehicles used by customers of prostitutes, similar to the Ordinance here, was preempted by the State's general asset forfeiture statute. In part, the Court was disturbed by the prospect of proliferating municipal forfeiture provisions trapping and confusing unwary motorists. Apropos of this case, the court stated:

In addition, we believe municipal forfeiture of motor vehicles would have an unreasonably adverse effect upon the general population. Forfeitures of motor vehicles for misdemeanor offenses varying from jurisdiction to jurisdiction, imposes uncertainty and confusion. . . . Even if traffic offenses are excluded, . . . . the number of misdemeanor offenses which could involve a motor vehicle is too great to allow a proliferation of local forfeiture ordinances. Under a municipal forfeiture system, motor vehicle owners could risk their vehicles for a different offense in each municipality. The forfeiture of property involved in criminal offenses has been covered by general state law, and the adverse effect of a local ordinance upon transient citizens outweighs the benefit to the City . . . . [internal citations omitted.]

This case is analogous. Upholding the Oakland Ordinance will inevitably lead to the enactment of copycat ordinances throughout the state, for defensive as well as pecuniary reasons. Even if the Oakland Ordinance were to prove successful, a questionable proposition, the most it can accomplish is to transfer the problem by relocating drug dealers and prostitutes to adjacent neighborhoods and localities. Recipient communities will be forced to enact similar ordinances to protect against this spreading ripple of crime, as well as to partake in the financial windfall that these ordinances produce. This brings to mind Justice Thomas's observation in Bennis: "Improperly used, forfeiture could become more like a roulette wheel employed to raise revenue from innocent but hapless owners whose property is unforeseeably misused, or a tool wielded to punish those who associate with criminals, than a component of a system of justice." 134 L.Ed.2d at 81.

The risks posed by widespread inconsistencies in the forfeiture laws are thus serious and unacceptable. Transient citizens should not be looked to as a potential source of revenue for financially-strapped localities.

With respect to prostitution and drug-related vehicle seizures, the State Legislature carefully balanced the interests of California's citizenry in uniform laws safeguarding their rights against the utility of forfeiture as a legitimate law enforcement tool. The legislature chose to enact statutes that would moderate the harsher and constitutionally questionable aspects of civil forfeiture laws. The will of the legislature should not be disregarded. This Court is respectfully urged to scrutinize the Oakland Ordinance with a view to its potentially adverse impact on the constitutionally-protected property and travel rights of the State's general population. Such an examination should lead this Court to the same conclusion as the Minnesota Court of Appeals, namely, that local forfeiture ordinances, such as Oakland's, which conflict with State law, are preempted.

Respectfully submitted,

WEINBERG & WILDER
 

Dated: May 5, 1999 BY:_____________________

NINA WILDER
Attorney for Amici Curiae

1. Appellants are filing a Request for Judicial Notice along with their Opening Brief. References to the documents included in that request will be cited by amici as "RJN, Ex.___".

2. "[A]lmost immediately after adoption of the Constitution, ships and cargos involved in customs offenses were made subject to forfeiture under federal law, as were vessels used to deliver slaves to foreign countries, and somewhat later those used to deliver slaves to this country." Calero-Toledo, at 416 U.S. 683.

3. The Joint Appendix prepared by the parties to this appeal will be cited herein as "JA at___".

4. This term, the United States Supreme Court heard argument in White v. Florida (1998) No. 98-223 (710 So.2d 949) to consider whether the warrantless seizure of an automobile pursuant to forfeiture law, absent exigent circumstances, violates the Fourth Amendment. The Florida Supreme Court held in White that the constitutional warrant requirement applies to seizures of property made pursuant to a forfeiture scheme. The Florida Supreme Court concluded:

"In the end the maintenance of an orderly society mandates that

a citizen's property should not be taken by the government,

without the intervention of a neutral magistrate . . . .[A]ny

inconvenience to the government pales in comparison to the

consequences for our justice system and constitutional order

if such abuses are left unchecked. 710 So.2d at 954.

Whether or not White v. Florida is affirmed by the Supreme Court, the decision illustrates the extent to which courts continue to be "distrustful of the government's aggressive use of broad civil forfeiture statutes." United States v. James Daniel Good Real Property (1993) 510 U.S. 43, 81.

5. The statute at issue in Austin, 21 U.S.C. § 881(a)(4) provides for the forfeiture of conveyances, including vehicles, used to transport or any manner facilitate a drug transaction.

6. A recent article in the Oakland Tribune strongly suggests that Oakland's practices under the Ordinance are skewed in favor of seizing high value vehicles.(AAC, Ex. A). The report focuses on two seizures, one a $22,000 airport shuttle van and the other a 1999 Freightliner tractor-trailer cab valued in excess of $50,000. Because the vehicles are needed for the drivers' livelihood, Oakland is in a position to extract a substantial payment from each of the drivers for the return of his vehicle. (See, J. Kennedy, Bennis dissenting, arguing that traditional forfeiture law should not be extended to the automobile "which is a practical necessity in modern life for so many people."

7. The low value of the forfeited vehicle, upon which all courts have commented, also made Bennis an unsuitable test case under the Excessive Fines Clause. In responding to the dissent's argument raising the disproportionality question, the majority repeated its reservation of the issue, quoting Goldsmith-Grant, "[w]hen such application shall be made it will be time enough to pronounce upon it." 134 L.Ed.2d at 77.

8. In the Oakland Tribune article on operation "Beat Feet," attached as AAC, Exhibit A. It is reported that of the ten drivers taken into custody on the night of the undercover operation, only two were from Oakland; the others were from Vacaville, Richmond and Walnut Creek. The driver of the tractor-trailer was from Mississippi.

9. The Legislature expressed concern that asset forfeiture not become "a local bounty system." It saw this danger as most acute in the area of vehicle forfeitures: "By extending these provisions to passenger cars the occurrence can be more common and the bounty danger more serious."

Assem. Comm. On Crim. Justice, Bill Analysis of S.B. 518, March 8, 1982, p. 2.