On Monday, Feb. 22, every major news outlet covered New York Mayor
Giuliani’s latest effort to burnish his tough on crime image. New York
City has now begun confiscating the cars of drunk drivers, before a
hearing and before a trial. The ACLU was quick to take a stand against
Giuliani’s law. Ira Glasser, the executive director of the ACLU,
appearing on CNN called the ordinance, “a license to steal.” In a New
York Post article Norman Siegel, executive director, New York Civil
Liberties Union, was quoted as asking, “Where does all this wind up?
When you jaywalk, are they going to say next that your shoes are an
instrumentality of the crime?”
Good question, Norman, but the ACLU silence was deafening when a jury
New York City found the manufacturers of a legal product liable for the
criminal misuse of that product. Would the ACLU have spoken out if the
products in that lawsuit had been cars, rather than firearms? Last year
in California the ACLU was again absent when California gunowners were
told to turn in their property or face prosecution because California
Attorney General Dan Lungren changed his mind concerning the legality of
a firearm. Those gun owners had even less of a chance to proclaim their
innocence than New York City drivers arrested for drunk driving.
The California attorney general, who was charged with implementing
California’s gun laws, had publicly proclaimed for four years that the
purchase of these particular SKS firearms was completely legal. In 1998
when he was running for governor, he changed his mind leaving tens, if
not hundreds, of thousands of gun owners facing prosecution or
confiscation of their property.
New York City’s new confiscatory ordinance has a two-fold problem.
it completely reverses the presumption of innocence upon which our
system is based. If the arresting officer believes a driver to be
intoxicated, then he or she is not only booked and charged but the car
confiscated. At that point the car and the driver are legally separated
and what happens to the driver has no relationship to the car. The
been charged under the criminal code, while the car is held under
established in the civil code.
Second, although the Police Commissioner maintains that this law is
protect the innocent who may become victims of drunk drivers, the
incentive to confiscate is also driven by revenues generated from the
sales of impounded cars.
Municipal government, especially in big cities such as New York, is
constantly looking for new sources of revenue. The revenue generated by
police seizures of guns, drugs and other big-ticket items has escalated
since 1984 when Congress passed the Comprehensive Forfeiture Act. This
act gave law enforcement at all levels of government license to share in
the take from forfeited assets. Now New York City has a new source that
is unique to
them — private automobiles.
Interestingly, the guidelines for confiscation are the most onerous
the driver who owns his car outright. Why is it if the car in question
leased, rented or belongs to someone else, it will be returned to the
legal owner? Could it be that Mayor Rudy Giuliani and Police
Commissioner Howard Safir understand property rights when the owner of
the automobile is not the driver being charged with a crime? Or is it
because they do not want to pick a fight with automobile dealers,
leasing companies, financial institutions and the car rental agencies?
It is also fitting that the police department charged with this new
enforcement activity has a wealth of experience in recognizing drunken
behavior. This is the same New York Police Department who demonstrated
drunk and disorderly behavior during a police convention in Washington,
D.C. a few years ago. In the current month of February several members
of the department have been involved in car accidents while DWI. It will
be interesting to see how many police officers or mayoral friends lose
their private automobiles when caught driving under the influence.
Yet, this ordinance is just another symptom of a growing tendency in
country to overlook and ignore the presumption of innocence. Too often
police officers become prosecutor, judge, and jury. In the case of
Amadou Diallo, the officers were so sure that they were in harm’s way
they fired 41 times against an unarmed man. There are unfortunately
countless true stories of police officers going way beyond their duty to
The stories are sent to me daily. For example:
- The elderly couple who are awakened and killed in their home by
screaming ninja-clad police officers. The authorities discover that the
informant sent them to the wrong house only after shooting the terrified
- An innocent couple driving home from the doctor is aggressively
followed by an unmarked car causing them to increase their speed to
evade the assailant. After pulling into the parking lot of a police
station they discover that the driver is an officer in uniform now
writing them a speeding ticket.
- A man, who just spent 48 hours awake in the hospital watching his
wife die, goes home and falls asleep. Next thing he knows is that there
are noisy strangers breaking down his front door. He holds his shotgun
as he opens the door. The noisy strangers turn out to be the police who
arrest the widower and charge him with assaulting an officer.
Our civil liberties must be safeguarded. We must leave the question
guilt or innocence in the hands of a court of law.
We all agree that severe consequences happen when people drink and
But eliminating the most fundamental of all civil liberties, presumption
innocence, will not solve the problem. Mayor Giuliani and Police
Commissioner Safir may temporarily change the fixation of national media
from the New York police department killing of Amadou Diallo to that of
combating drunken driving, but neither problem is truly solved.
Whose freedoms will they trample on next? How will Mayor Giuliani
with the inevitable problem of civil courts becoming more over-crowded
due to a backlog of automobile confiscation cases? Those of us who have
decried the political push to more and more restrictive firearms laws
have warned that others will be next: guns, tobacco, and now cars. The
freedoms that lured millions upon millions of refugees to Ellis Island
in New York harbor
should not be sacrificed to anyone’s political ambition.