An Open Letter to the Eureka City Council

August 1, 2004

The Civil Liberties Monitoring Project urges you to reject the Proposed Bill
No. 731-C.S., amending Section 132.15 to 132.28 of the Eureka Municipal
Code, would allow the seizure of vehicles used to solicit an act of
prostitution or in an attempt to sell or buy illegal drugs. At the very
least, we ask that you postphone the vote on this matter to allow other
groups and community member to weigh in on it.

The ACLU and other groups have successfully fought off similar ordinances in
San Francisco and Sacramento; however ACLU lost an Appeals Court ruling over
a forfeiture ordinance in Oakland. That ruling, however, was not accepted by
an appeals court in Southern California recently. In March of this year, the
Contra Costa Superior Court found the city of Richmond's vehicle forfeiture
ordinance unconstitutional on pecuniary interest grounds (CASE#:
MSC03-02841, TANZEL v. CITY OF RICHMOND) and the Sacramento Superior Court
found that Sacramento's vehicle forfeiture ordinance violates due process
because it does not provide for a prompt post-seizure probable cause
hearing.
We see the following problems with the ordinance:

*    Punishment without conviction. Vehicles can be seized without due
process or anyone being convicted for the underlying criminal offense. Even
if forfeiture proceedings are not brought, owners must pay towing and
storage fees for up to one year.

*    Punishment of the innocent. Innocent owners whose vehicles are used for
illegal purposes without their knowledge or consent may still lose their
vehicles, even though they may recover their financial interest at a later
time. Thus, a family could lose its only car under such circumstances, even
if the vehicle was a necessity for employment or education purposes.

*    Cash bounty system. Asset forfeiture is a law enforcement weapon that
directly generates revenue for the government, creating a built-in conflict
of interest because the proceeds of the forfeiture sale are split between
local law enforcement and local prosecutors. The potential for law
enforcement abuse is enormous.

*    Disproportionate punishment. The Ordinance would subject to forfeiture
and sale the vehicle of a first time offender who attempted to purchase a
$10 bag of marijuana. The District of Columbia Court of Appeal invalidated
under the Eighth Amendment the seizure of a truck valued at $15,500 because
the underlying criminal offense (soliciting a prostitute) carried a maximum
fine of $300. One Toyota Pick-up Truck v. District of Columbia, 718 A. 2d
558 (D.C. 1998). The court's reasoning -- that the forfeiture was "grossly
disproportional to the gravity of the [criminal offense]" -- could certainly
apply to seizures under the Ordinance, as the maximum fine for the
possession of small quantities of marijuana is $100 and no jail time. Health
& Safety Code §11357(b).

*    Disparate impact on racial minorities. The City Council should
question the appropriateness of adding another weapon to the arsenal of the
police that will give them both the discretion and the financial incentive
to single out drivers suspected of being involved in minor offenses, since
in the past ³driving while black² has been a documentable problem.

CLMP recognizes that prostitution and drug traffic adversely impact local
communities and are matters of legitimate governmental concern. However, we
urge the Council not to establish a harsh and overbroad local forfeiture
operation that places at risk basic individual and property rights.

It is our understanding that under state law, a vehicle used to solicit a
prostitute can only be impounded for 48 hours; the Legislature explicitly
decided not to authorize vehicle forfeiture for such a minor offense.  State
law recognizes the severity of the forfeiture sanction by setting threshold
minimum amounts of drugs so that vehicle forfeiture is used only against
major drug dealers.

Eureka should not follow Oakland's lead in enacting a law that directly
conflicts not only with the measured and balanced approach adopted by the
State Legislature, but which is inconsistent with fundamental principles of
fairness and due process that are the hallmarks of our system of justice.

Civil Liberties Monitoring Project
PO Box 544
Redway, CA 95560
707-923-4646
www.civilliberties.org



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