The Eureka Reporter published this Op Ed today, August 2.  The author, Ellen Komp, is a
long time FEAR-member and activist.


The Eureka City Council, which recently took the commendable step of
returning seized property to its rightful owner the Wiyot tribe, is now
seeking to seize othersı property instead. 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.

A second reading of the billıs title will take place Tuesday at the Eureka
city council meeting. After the reading, the bill can be passed into law, to
take effect in 30 days.

The bill would make it unlawful to ³loiter² at or within one block of parks,
schools, recreation centers, businesses, residences, or any public street,
alley or parking lot, ³with intent to buy, sell, transfer or use illegal
drugs, or to engage in prostitution activity.²

Under the ordinance, if an officer has probable cause to believe such
loitering is taking place, and intends to file charges, s/he may seize the
vehicle involved without due court process, pending a ³nuisance² vehicle
forfeiture complaint from either the Eureka City Attorney or Humboldt County
District Attorney. Probable cause is defined as an officerıs knowledge that
the individual has repeatedly been involved in outlawed activity at the same
location; information from a ³reliable informant² of the individualıs
intent; or a citizen complaint coupled with the officerıs observation of
behavior ³consistent with the information known or received.²

The CA/DA will have one year to decide whether or not to file for forfeiture
of the vehicle, and even if they decline to file a complaint, the vehicleıs
owner ³shall be required to pay all tow, storage and related costs incurred
to the date of release.² The city of Eureka would ultimately have to prove
by a preponderance of the evidence that the vehicle was used in the
commission of a crime. Innocent owners and lien holders would receive their
share of the property back, provided they file a claim within ten days of
notification. The remainder of the proceeds would be divided 50%/50% between
the Eureka police department and the City Attorney or District Attorney.

The Civil Liberties Monitoring Project is urging city officials to reject
the proposed ordinance, on the following grounds:

*    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.  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.

*    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 [racially motivated traffic stops] 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. Eureka
should not enact 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.

Ellen Komp is a member of the Civil Liberties Monitoring Project (Redway).
Alan Schlosser of North Coast ACLU contributed to this article.




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