State agencies unsure how civil forfeiture ruling will affect budgets

In California, a state that's passed more legislation around civil asset forfeiture than most, does the recent U.S. Supreme Court ruling regarding the practice stand to make much of a difference?

For criminal defense attorney Raphael M. Goldman, it may be too soon to tell.

Goldman, a partner at Arguedas, Cassman, Headley & Goldman LLP, said civil forfeitures have become a hotter topic among attorneys in recent years thanks to the attention that opponents of the practice have gotten in the media and on the political stage. This publicity led to legislation like Senate Bill 443, enacted Jan. 1, 2017, which required a conviction for most seizures by increasing the threshold for seizure without a conviction from $25,000 to $40,000.

Funds from assets that are not paid to victims of crimes as restitution are normally fed back into the criminal justice system. For example, in Los Angeles County, the Board of Supervisors estimated the district attorney would receive $1.2 million in funds generated from the auctions of asset seizures by law enforcement for the current fiscal year. The district attorney would not comment on how the ruling would affect her office.

But Rockne A. Lucia Jr., who manages the collective bargaining practice group at Rains Lucia Stern St. Phalle & Silver PC, said the police associations he represents don't rely on asset forfeiture for any budget planning purposes. The proceeds of civil forfeiture are more of a one-time windfall and, therefore, not considered a serious source of income, he said.

"It's not included in any discussion of budgets or wage increases because they can't plan for it," Lucia said. "What they do with it is up to them but from a labor perspective we don't have much to do with it."

Most of the laws around civil forfeiture, Goldman said, have been procedural. But the high court's ruling last week in a case concerning the civil forfeiture of a low-level drug dealer opens the door for an argument to be made against forfeiture, Goldman said, even if procedurally the asset seizure checks out. Timbs v. Indiana, 2019 DJDAR 1337 (U.S. Feb. 20, 2019).

"Our state has better protections than other states, but this [Supreme Court ruling] leaves room for the idea that even if the state follows all the rules, there may be still be an amount that is too much," he said. "The Supreme Court is slow and careful, but probably one of the reasons they were attracted to taking this case has to do with this controversy that's already been brewing. The holding leaves room for the federal courts to start getting involved more frequently in civil forfeiture disputes."

The Timbs case involved the seizure of a $42,000 SUV owned by Tyson Timbs, who allegedly used the vehicle when he sold about $300 worth of drugs to an undercover police officer. Writing for the unanimous court, Justice Ruth Bader Ginsburg wrote the excessive fines clause of the 8th Amendment is an incorporated right, and that "the protection against excessive fines guards against abuses of government's punitive or criminal law enforcement authority."

Alleged abuse of the civil forfeitures appeared in numerous amicus briefs before the court.

In a joint brief filed by the Drug Policy Alliance, the National Association for the Advancement of Colored People, Americans for Prosperity, the Brennan Center for Justice at NYU School of Law and others, abuse of asset forfeiture laws was characterized as rampant and racist.

"These days ... states do not seize the assets of drug kingpins (if they ever did), but of ordinary Americans, often with little or no connection to criminal activity," states the brief, which was prepared by attorneys at New York-based Holwell Shuster & Goldberg LLP. "And, because the proceeds of a forfeiture proceeding often go to the enforcement agency itself, state agencies employ these proceedings as a mechanism for funding their operations -- with assets seized predominantly from the poor and people of color."

"The court's decision builds upon the argument raised in our brief by pointing to the historic use of criminal fines to enforce a racial hierarchy and compel Black Americans into indentured servitude," Daniel Harawa, assistant counsel at the NAACP Legal Defense and Educational Fund Inc., said in a statement. "This ruling also places important constitutional limitations on rampant asset forfeiture abuses at the state level, which disproportionately target communities of color to this day."

Leslie McGill, executive director for the California Police Chiefs Association, said the organization does not track income from forfeitures and, therefore, does not know how much stands to be lost in light of the court's ruling. She declined to comment on the decision.