The Lord giveth, the police taketh away

September 21, 2000

It’s a short drive between Oakland and San Francisco, Calif. —
unless you don’t have a car. And, not entirely coincidentally, if
you’re looking to lose one, the Oakland police can certainly oblige; the
same will go for the city across the Bay if a town elder at the Golden
Gates gets his way.

As currently allowed by Oakland city ordinance, if a john or junkie
prowls the streets in search of a fix, the police can not only arrest
the offender but take his car, too. Police, according to the Sept. 18
San Francisco Chronicle, “conduct their car seizure operations, called
‘Operation Beat Feet,’ in various neighborhoods about twice a month.
About 80 percent of the cars seized belong to alleged drug buyers, and
the rest to alleged johns.”

Following the lead of Oakland Mayor Jerry Brown, across the Bay
another Brown is recommending a similar course of action. Citing
people’s “right to peace, tranquility and safety in their
neighborhoods,” San Francisco Supervisor Amos Brown wants cars used in
drug buys to be labeled “public nuisances” and subject to confiscation
and sale.

How much of a public nuisance are these cars? Brown, who is also a
Baptist minister, likens the cars of drug users and sellers to the
chariots of Pharaoh’s army. And his proposed ordinance? According to
the Chronicle, Brown compares his plan to God knocking the wheels off
Pharaoh’s chariots. “Removing the transportation of evildoers also
helps stop evil, Brown said.”

Frisco car filchers are excited about the possibility of approval for
the plan. The proposal cleared a major obstacle Tuesday when the city’s
Housing and Social Policy Committee voted — without actually taking a
position on the measure — to send the legislation to the Board of
Supervisors for consideration next week.

I guess the cops and city-government Pooh-Bahs figure as long as
we’re scrapping the

Fourth Amendment, we might as well get a good start on the Fifth.

Most people think the Fifth Amendment means you don’t have to tell the jury you robbed the pizza deliveryman or embezzled all that money from your uncle’s carpet cleaning company. True. We’ve seen enough Perry Mason episodes and Clinton-scandal grand jury appearances to know the line: “I refuse to answer on the grounds that it might incriminate me.” And while “weasel protection” is covered in the Fifth, so is another vital protection — the takings clause:

No person shall be … deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.

Notice how that never says, “Unless we’re talking drugs; in which case, the cops can take whatever they want.”

That, however, is certainly how law enforcement seems to read the amendment. Just last month, Aug. 21, city councilors in Albuquerque, N.M., extended to police the right to seize the homes of parents whose children host beer bashes or pinch dad’s Jim Beam for drunken revelries.

“Underage drinking is a big problem,” said the city councilor who sponsored the measure. “If there’s anything we can do to curb this phenomenon in our community, we should do it.”

Even if it means wearing out a pencil-top eraser on the Constitution? Of course. We’ve got to stop the scourge of illegal doping and underage boozing, and, as the aforequoted Albuquerque councilman so eloquently points out, “This gives us a hammer.”

It’s one of those situations where the Fifth Amendment is now void where prohibited by law.

Undoubtedly, the current seizure-fever mentality of police at all levels of American government can be traced back to Reagan’s war on drugs in the ’80s. “Conservatives did not realize that the main result of their efforts would be the routine confiscation of the assets of the innocent,” Paul Craig Roberts explains in his Sept. 14 Creators Syndicate column. “Frustrated by the difficulty of deterring drug trafficking, conservatives decided that suppressing the drug trade was more important than the U.S. Constitution.”

How so? The federal Comprehensive Forfeiture Act of 1984 paved the way for government seizure of any property connected to a drug crime — a drug dealer’s car, a buyer’s house, whatever.

“The confiscation,” explains Roberts, “is permitted regardless of whether the owner participated in illegal drug activity or was aware that others had brought drugs to his property. Moreover, no proof is needed. To seize property, law-enforcement officials need only claim ‘probable cause’ for their discretionary actions.”

And you can blow Lady Justice a kiss goodbye on ever getting any. With federal forfeiture greatly expanding ever since 1984 (some 140 other federal statutes now qualify for a state snatch in case of lawbreaking), justice is getting the middle finger.

“Property is being seized without a hearing, and people can permanently lose their cars without ever being convicted of a crime,” says American Civil Liberties Union attorney Alan Schlosser about Oakland’s car-nabbing policy. “There’s no presumption of innocence, so the burden is on you.” And what about all that due process and Fifth-Amendment guaranteed “just compensation”? Keep dreaming. According to the July 25 Fresno Bee, the First District Court of Appeals ruled Oakland’s ordinance constitutionally kosher; neither, according to the court, does it violate any state law.

Unless the State Supreme Court hears the appeal, you’d better plan on driving a rental next time you visit the city. As of July, Oakland had confiscated 350 cars and auctioned off more than 280 of them.

Worse yet, think of this: Rep. Henry Hyde, R-Ill., points out that in 80 percent of asset forfeiture cases, no charges are filed against those whose property is confiscated — and the cops get to keep the stuff they filch. Seizure victims must sue the government to get back their possessions, something most people cannot afford to do. In other words, you could be entirely innocent but still unable to get justice. Maybe not all, but few people can afford to fight city hall. And those that can suffer as well.

Eric Kinney’s car was nabbed when he was caught in a 1999 sting operation, allegedly trying to score two grams of ganja. Oakland police seized his 1989 Ford Ranger on the spot; the vehicle was worth about $5,000. According to the Sept. 20 San Francisco Examiner, he eventually got his truck returned to the tune of $2 grand in legal fees. “This was very traumatic,” recounted Kinney. What’s more, he was never convicted.

Given the rewards, it should surprise no one that government will vigorously defend its confiscations. After going through the proper channels, money seized often makes its way back into the police budget; it can be a considerable boon for the city purse. While an Oakland official tries to reassure that car-snatching “is not a big moneymaker for us,” the city has still raked in some $321,000 since the program started in 1997. Not bad for a small moneymaker. Other scores are still far more profitable.

In 1998, Ohio State Highway patrolmen stopped a car for speeding and got plenty more than the paltry ticket revenue. After searching the vehicle, police discovered marijuana seed and $150,000. Ever-dutiful, the patrolmen turned the money over to the federal Drug Enforcement Agency. The DEA kept less than $30 grand and sent the rest back to the Ohio State Highway Patrol — net profit of more than $120,000 for pulling over a single car. Not bad for a day’s work.

There are more than a few problems here, however. “Police have become addicted to seizure money,” according to Hoover Institution scholar Joseph McNamara, also the former police chief of both Kansas City and San Jose. Kind of a perverse incentive — seize a car, cash or house and keep them for the department. Even with recent changes in federal law, local governments stand to prosper greatly from forfeiture, regardless of the guilt of the suspect.

But, beyond being used to bolster policing budgets, drug dough sometimes goes to completely ridiculous items, as well. A state audit in Kansas recently turned up record of forfeiture money going toward crayons and coloring books for a drug education program; several hundred dollars, according to the Sept. 18 Kansas City Star, actually went to purchase a remote-control door opener for a police dog.

Might as well let the mutt pee on James Madison’s pant leg.

And abuse, as usual, is not unheard of. “One agency actually had disposed of drug money before a judge declared it legally confiscated,” reports Karen Dillon in the Sept. 18 Star. “Another agency improperly deposited state and federal money into a local bank account instead of its law enforcement trust fund, as the law requires.”

“It is very sad,” says McNamara, “and very dangerous to civil liberties.”

Think back to Esau trading his birthright to his brother Jacob for a mess of porridge. That’s what conservatives have done. Faced with the immediate concern of solving America’s drug problems, conservatives traded the Constitution — with its glorious protections, its cherished role in our history and tradition of defending individual rights and liberties — for drug-control policies that have gone sour in our mouths, turned freedom to tyranny and destroyed the Bill of Rights.

Though, thank the Lord, unlike Esau, America may still be able to regain its birthright. To do so, however, will require that we dump this bowl of pork ‘n’ beans we’ve traded for the Constitution and begin working toward ending our liberty-squelching war on drugs.