California Enacts Senate Bill 443, a civil asset reform measure 

 by Isaac Safier, (c) 2016

Senate Bill 443 introduced by state Sen. Holly Mitchell (D-Los Angeles) has been enrolled and submitted to the Governor for signing or veto after being unanimously approved by the state senate.  After earlier versions were defeated, it was rewritten as a compromise between legislators and law enforcement. 

If passed, SB 443 will reform the asset forfeiture process by tweaking California Health and Safety §11000, et seq. (which allows seizure of property involved in controlled substance crimes).  Most importantly, it would generally prohibit equitable sharing (where local police can hand cases over to federal authorities in exchange for a share of the proceeds) without a conviction.  The bill would change the burden of proof that a state or local law enforcement agency must meet to succeed in a forfeiture action with regards to cash or negotiable instruments of a value not less than $25,000, but not more than $40,000, from a clear and convincing standard to beyond a reasonable doubt.  In addition, it adds some accounting and reporting duties related to seized funds.  It is a start, but it does not go far enough to stop the most common abuses of asset forfeiture law. 

When an asset is seized, the owner typically gets a receipt and then a Notice of Asset Forfeiture in the mail. The notice received, and procedure for making a claim, depends on which agency or police force confiscated the asset. Some agencies require a verified claim with certain language to be mailed, others require a claim to be filed in a local court with filing fees paid.  The owner has 30 days from actual receipt of the notice to make a proper claim.  Owners that don’t file a proper claim within 30 days seldom get their asset back. 

There is an increasing amount of gamesmanship that authorities use to ensure that deadlines are missed, claims are misfiled and their asset forfeitures are not opposed. Examples include:

• Serving an owner with an administrative forfeiture notice while they are in jail, then taking away the paperwork. The 30 day clock starts ticking but they cannot find an asset forfeiture attorney while they are in jail and their public defender or criminal defense attorney may not know what to do without the paperwork.
  
  
• Sending a forfeiture notice to a return address on a package instead of trying to locate the real owner of the asset. The 30 day clock ticks away as the notice or a public posting makes its way to the person who actually wants to file a claim.  
   
• Sending an administrative notice of forfeiture with an attached MC-200 form and misleading or insufficient instructions on how and where to make a claim opposing forfeiture. No information is provided about filing fees or that filing the claim is equivalent to filing a civil lawsuit. The 30 days trickle away as the owner attempts to correctly file and serve the seizing agency.
  
  
• Sending an asset forfeiture notice with no explanation about how to make a federal claim authorized by 18 U.S.C. § 983(a)(2)(A). If the owner does not use the exact wording required, the claim may be invalid.
  
  
• Sending an asset forfeiture notice with a letter explaining the “Remission Procedure” or “Request for Pardon of Property” without making it clear that these procedures forgo the right to have the case heard in front of a judge, and instead allow an internal agency attorney to decide the case (they rarely decide in your favor).
  
  
• Training narcotic detection canines to detect cash and then confiscating any cash found on the flawed premise that the canine only alerts on narcotics.  

While some states have amended their asset forfeiture laws in significant ways, California authorities continue to seize property using asset forfeiture.  If SB 443 is passed in its current form, it will chip away at asset forfeiture but it will not address the gamesmanship in the use of asset forfeiture law that most often deprives innocent people of their property. As long as this continues, and police departments and government agencies reap the benefits of seized cash, they will reinvest in ways to intercept more cash, and the asset forfeiture industry will grow.

Isaac Safier Esq. (SafierLegal.com) is a civil asset forfeiture attorney and wrote this legal update.  (415) 967-0125.  SafierLegal.com