Forfeiture Endangers American Rights
Brenda Grantland, Board President
20 Sunnyside Suite A-419
Mill Valley CA 94941
(415)389-8551
www.fear.org
August 2, 2004
Re: City Council Bill 731-C.S.
Dear Eureka City Councilmembers:
I am not a resident of your city, but I appear in court there
periodically as an attorney. I have two decades of expertise on the
issue of asset forfeiture which I would like to share with you in your
consideration of Bill 731-C.S. As a private attorney (sole
practitioner) I have 21 years' experience defending forfeiture cases.
I also serve as president of the Board of Directors of the national
nonprofit organization Forfeiture Endangers American Rights. My
organization and I have been key consultants on several important
pieces of forfeiture reform legislation -- including California's
AB-114 (the Burton bill) which reformed state law in 1994, and the
Civil Asset Reform Act of 2000 (Rep. Henry Hyde's bill), which reformed
federal forfeiture law in April 2000. In my private practice I have
litigated the constitutionality of various forfeiture schemes. My
civil rights suit against the forfeiture procedures and practices of
the District of Columbia in implementing their first forfeiture law was
filed in 1987. That case is still pending -- on the issue of the
attorneys fees the District owes us for 17 years of litigation.
I am writing you to urge you not to pass this bill, and especially not
without extensive public hearings weighing the pros and cons of this
legislation.
For several reasons I believe your ordinance is unconstitutional under
the U.S. and California constitutions.
- Although I have not studied this issue in detail, it is my
opinion that cities and counties do not have the authority under the
balance of powers in the state constitution to enact punitive criminal
legislation like this ordinance. Under the doctrine of preemption,
state criminal law controls, and your ordinance is in conflict with the
state criminal law in several respects. It would be insane and
unworkable for this country to become a patchwork of conflicting
criminal laws that vary from burg to burg as travellers make their way
around the countryside.
- This ordinance is too vague and confusing to give fair notice of
what conduct could legally result in forfeiture of a car. If the
language of a statute is so overbroad, vague or confusing that
it does not give fair notice of what is prohibited, it is void for
vagueness.
- The conflict of interest created by allowing the police and
prosecutors to profit financially has been the subject of several
lawsuits. Two members of FEAR's Board of Directors -- Vice President
Scott Bullock (at the Institute for Justice, Washington D.C.) and
member Mark Clausen, a sole practitioner in Windsor, California -- have
each obtained rulings at the trial level, holding the forfeiture scheme
unconstitutional when the prosecutor and police stand to profit from
the forfeitures.
- The lack of a prompt post-seizure hearing was grounds for
declaring a similar N.Y. ordinance unconstitutional in Krimstock v.
Kelly, 306 F.3d 40 (2nd Cir. 2002) cert. denied 539 U.S. 969 (2003).
The same issue was resolved in property owners' favor in my 17-year old
case, Patterson v. District of Columbia, in an opinion published in
1989.
- If your city passes this ordinance they can expect litigation
over these constitutional issues. That litigation expense should be
figured into the costs when computing the potential profitability of
such an ordinance.
A city-wide forfeiture ordinance like this one is also bad law
enforcement policy.
- There has never been any evidence that forfeiture statutes or
ordinances are effective in deterring crime. Emperical studies
conducted by social scientists show the opposite -- that it diverts law
enforcement attention away from solving crime to seizing property for
the income it generates.
- In a smaller community such as Eureka, the number of law
enforcement personnel diverted to run a forfeiture sting operation is
substantial, resulting in a serious drain on crime fighting resources.
Forfeiture sting operations require undercover officers watching or
participating in petty crimes in order to build the evidence to seize
property. Once they decide they have probable cause to seize, another
team of officers is pulled off their crime fighting duties to seize the
car and transport it. It may take a dozen officers to take down a
suspect and bring in one car, with hours spent on paperwork and
subsequent court activities to perfect the forfeiture. This is a big
investment for a petty crime, and not cost-effective.
- Studies show that forfeiture schemes like this usually lose money
rather than make money. The average car seized under such statutes is
usually worth $1,000 to $2,000 or less depending on the demographics of
the area. The towing and storage costs eat up the value while the car
is detained pending forfeiture proceedings. This draft ordinance tries
to shift the storage and towing costs to the property owner even if the
government declines to prosecute. That feature of the ordinance is
also likely to be challenged in the courts.
For these reasons, you should scrap your plans for passing a forfeiture
ordinance. At the very least you should hold public hearings with
reasonable notice to allow us, and other concerned citizens and Eureka
residents, to present our case to you in person. If you hold these
hearings and hear our evidence I believe you will agree it would not be
wise, or just, or Constitutional to pass this ordinance.
Please visit the FEAR website (www.fear.org) for more information.
Sincerely,
Brenda Grantland