SUPERIOR COURT JUDGE CHALLENGES 'BEAT FEET'

OAKLAND -- The city's Beat Feet program -- which lets police seize
vehicles in drug and prostitution stings and has left hundreds of
unhappy customers with a long walk home -- is treading more carefully
since an Alameda County judge ruled the punishment may exceed the crime.

In an opinion filed late last month, Superior Court Judge Carl W.
Morris challenged the constitutionality of vehicle forfeiture in a
typical Beat Feet case, saying the seizure of a truck after its owner
bought $20 worth of phony marijuana from undercover officers last year
could be considered an excessive fine as outlined in the Eighth
Amendment to the U.S. Constitution.

Though the ruling is just one judge's opinion, the City Attorney's
office reacted quickly, crafting a new questionnaire for police use
during Beat Feet operations that attempt to strenghten the case for
seizure.

Since its debut in January 1998, Beat Feet has withstood legal
challenges focusing on whether state laws governing punishment for
low-level drug buys and solicitation supersede a city's home rule.

Morris' opinion does not challenge Beat Feet's concept, but suggests
that courts test seizures against the facts in each case to arrive at
a punishment proportionate to the crime committed.

Morris' factors for determining whether the seizure is too harsh
include the property's market value, the hardship to the defendant,
whether the defendant was directly involved in the illegal activity or
was negligent in letting the vehicle be used for unlawful purposes,
and the seriousness of the crime. In this case, Morris ruled the
defendant must pay a $2,500 fine to retrieve his 1989 Ford Ranger --
half of the vehicle's market value.

"With a goal of deterrence, the concept of bail is a more utilitarian
approach to forfeiture than maximum fine," Morris wrote in the
five-page opinion.

Brenda Grantland, the defendant's attorney, said she is pleased the
case yielded the first such challenge to the controversial program,
but believes the fine imposed by Morris was still disproportionately
high.

The City Attorney's office argued vehicle seizure is meant to remedy
drug traffic in embattled Oakland neighborhoods, not to punish
offenders; Morris rejected that argument. Williams said this week her
office has not yet decided whether it will appeal the ruling and is
analyzing the decision to see "what the impact would be.

"One of the key points is he did not strike down our ordinance; the
issue he addressed was basically the amount of the fine," Williams
said. "We were not terribly disturbed by the opinion. ... I certainly
don't view this decision as a negative one, as one of defeat. I see it
as giving us guidance."

But Williams and her staff were apparently concerned enough to create
the new Beat Feet questionnaire, which could serve as a form of damage
control. Deputy city attorneys distributed it to enforcers just before
a sting last month. The Morris case was decided March 31.

The new form asks sting suspects pointed questions about the vehicle,
from the value of the car -- including cost and personal need -- to
whether its owner knew the vehicle would be used in the course of
illegal activity.

City Councilmember John Russo, who will replace Williams as city
attorney by next January, has been critical of Beat Feet because there
is no built-in defense for "innocent owners" whose vehicles were used
in drug and prostitution crimes without their knowledge. But he said
he will diligently enforce it and does not believe Morris' decision
will harm the program.

But if Morris' ruling catches on in the courts, it could chip away
Beat Feet's core concept: that drug buyers and johns won't take their
chances in a city that practices zero tolerance. And it could reduce
the number of vehicles seized and sold at auction, money which is
divided among city agencies.

At least one other Alameda County Superior Court judge has invoked
Morris' decision in another forfeiture case, this one involving a man
who borrowed a car from his Hayward parents, apparently without their
knowledge that he would try to buy a rock of cocaine. Judge Judith
Ford requested that the city broach the issue of proportionality.

But in a rather embarrassing development, the city settled the case in
mid-May when it was learned the car had been sold while the civil
trial was still under way. Terms of the settlement are confidential,
but attorney Susan Raffanti said it included the return of the
couple's 1982 Volvo.

Deputy City Attorney Pelayo Llamas Jr. said the sale was a mistake: a
city contractor storing the car confused it with another 1982 Volvo,
whose sale had been authorized.

Raffanti said if the case hadn't been settled, she believes her
clients would have benefited from the Morris ruling and prevailed in
court.

"Once (Morris') tentative ruling was known, it was pretty clear they
weren't going to be able to take the family's car in a case like
this," Raffanti said.

Raffanti said if the case hadn't been settled, she believes her
clients would have benefited from the Morris ruling.