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Michael Haugen | September 14, 2015
Presented with the opportunity to provide residents of the Golden State with some of the country’s strongest protections for property rights, some members of the California State Assembly thought better of the proposition.
In a lopsided 24 to 44 vote, SB 443, a sweeping piece of legislation that would have functionally ended civil asset forfeiture in California, failed to pass after a bevy of interest groups came down in opposition of the bill since it arrived from the Senate—where, interestingly, it passed by an overwhelming 31-1 vote earlier this year. Twelve assembly members did not vote.
This unsuccessful vote comes at a time when the winds of public sentiment favor reform nationwide. Organizations as diverse as the Cato Institute and the ACLU have been critical of civil asset forfeiture, and similar legislation to California’s has been passed into law this year in Montana, New Mexico, and Nevada—all on a bipartisan basis.
Writing today in the National Review, Derek Cohen, deputy director of Right on Crime, stated that the floor debate from legislators on both sides of the issue followed the “standard script”:
“Proponents of reform cited several cases of abuse, highlighted the troublesome incentive structure, and proposed a reform package requiring law enforcement to establish criminal guilt before taking permanent ownership of property. As under current statute, law enforcement would still be able to make evidentiary seizures of property and contraband.
“The opposition kabuki was less predictable. Dissenting opinions ranged from claiming the bill went “a little too far,” to parroting the assertion of Lynch in her confirmation hearing that forfeiture “is a valuable tool” in crime fighting, to claiming that people who carry large sums of money are probably criminals. (It will be a difficult day when the first food truck or street vendor appears in California.)”
While California has some middling protections in place already against forfeiture abuses, loopholes still exist from the last time lawmakers visited the issue, most notably local and state law enforcement’s participation in the federal equitable sharing program. Restrictions on law enforcement agencies from using forfeiture pursuant to state law has long incentivized agencies to follow the path of least resistance where possible; in this case, partnering with federal authorities, who operate under far more permissive statutes. For the time being, this circumvention will continue.
As Cohen explains, not one organization besides those with a vested interest in forfeiture advocate for a continuation of the practice, and California was no exemption. A common rejoinder proponents of forfeiture used in the floor debate is that law enforcement needs this “valuable tool” to combat crime. Property rights, however, are not an abstraction to be bartered, as James Madison demonstrated in Federalist 10, when he proclaimed that protecting them is the “first object of government.” To this end, Cohen aptly delineates what the proper balance should be:
“Certainly, our police and prosecutors must be adequately funded so they may protect our communities. But this must be done through the prescribed appropriations process, not through constitutionally dubious takings.”