ACLU SUES OAKLAND OVER CAR SEIZURES

OAKLAND -- An Oakland ordinance allowing the city to sell cars seized in
drug and prostitution busts without charging owners with crimes has raised
constitutional concerns among residents and a local civil rights group.

The nuisance ordinance was created in 1997 as part of a crime reduction
plan called operation Beat Feet, in which undercover cops pose as drug
dealers and prostitutes in some of Oakland's highest crime areas. When
drivers or passengers ask to buy drugs or sex, they are arrested and the
car is confiscated.

Once a car is seized, the vehicle's registered owner -- regardless of
whether he or she was present at the bust -- has 10 days to negotiate a
price with the city for the car's return or it is sold at public auction.
Half of the proceeds go to the police and the other half to the city.

On Tuesday, the American Civil Liberties Union filed a lawsuit against the
city in Alameda County Superior Court claiming the ordinance violates state
law by seizing property without a conviction. The ACLU filed the suit on
behalf of Oakland resident Sam C. Horton, a citizen concerned about the
ordinance as a taxpayer but not directly involved in a case.

"The California state Constitution says that local governments can't
preempt state law," said Alan Schlosser, managing attorney with the
Northern California ACLU.

Schlosser said state law includes two statutes that provide people basic
property rights and due process protections in seizure cases.

"The thing that is upsetting about the Oakland ordinance is that it shows a
total disregard for protections the state chose to engraft into state law,"
Schlosser said.

The protections, Schlosser explained, are the same that a person would
receive in a criminal trial. "People are not given a presumption of
innocence, they are not given a jury trial and they are not appointed a
lawyer if they can't afford one," Schlosser said of the city's civil
ordinance.

In the last year, the Oakland Police Department and its city attorney's
office have confiscated more than 70 cars allegedly involved in drug
purchases or prostitution in East and West Oakland neighborhoods, many
without a conviction.

The city said the operation was intended to eradicate the demand side of
drug and prostitution economics by removing consumers, many who drive from
outlying cities to parts of Oakland known as easy places to buy drugs and
hire prostitutes.

City officials say that so far, the strategy is working.

"When we first began the program, we were getting about 30 cars at a time,"
said Alameda County Deputy District Attorney Andy Cuellar. "Last time we
did it we only got about eight. This shows that people are paying
attention." Cuellar contends that what the city is doing is within the law.

"The fact that the ordinance serves in part to deter crime does not
necessarily mean that it's a criminal ordinance," Cuellar said. "Civil
penalties can be imposed when people have engaged in criminal activity."

Cuellar argues that the city will survive the ACLU's legal challenge
because the state statutes do not require due process in all cases and the
state Constitution gives the city the power to create its own ordinances
that don't rely on statutes.

Steve Simirin, an Oakland attorney who has represented several plaintiffs
in forfeiture cases with the city, said the ordinance is dangerous because
it is too broad.

Simirin said he represented a woman whose husband took her new van for a
drive with a friend. The friend said he needed to get out of the car to
"talk to somebody," but what he did was buy drugs, Simirin said.

The van owner's husband was surrounded by cops, had to spend the night in
jail and pay a bail bondsman, even though the charges against him were
dropped, he said.

The next day, Simirin said, the couple went to the police station to get
the van. They were told they would have to go to court and pay a $200
filing fee to contest the forfeiture.

Eventually, Simirin negotiated a deal so that the woman -- who was not
present at the time of the bust -- paid $1,500 to get her car back and
about $1,100 for towing and storage. If the woman had not paid the fees,
the city would have sold her car. Simirin said the woman did not fight the
case because it would have taken more than a year to resolve and would have
included court and attorney fees. Part of getting the car back also
includes signing an agreement not to sue the city.

According to city records, in addition to the ACLU's case, eight forfeiture
suits have been filed against the city. City officials aren't fazed by such
suits.

"The ACLU should take us to court if they are so inclined, but we feel the
ordinance can withstand a legal challenge," said Nate Miley, an East
Oakland city councilman who is chairman of Oakland's public safety
committee.

Miley said he believes the ordinance may need to be reviewed to ensure its
fairness, but he thinks it is necessary to combat the drug trade plaguing
his district.

"Three-quarters of the cars we confiscated were from outside of Oakland,"
Miley said. "If word gets out that you can't come to Oakland to buy drugs,
that will be a big deterrent, because there won't be any market."

John Crew, director of the ACLU's police practices project, said that
although the ordinance may deter crime, it also may extort money from
innocent car owners.

"I am not comfortable with an ordinance that gives the police a fiscal
incentive to pick people up," Crew said.

The ordinance does not state criteria by which the city attorney determines
fines for confiscated cars, giving car owners little room to negotiate.
Assistant City Attorney Marcia Meyers said that she determines fines based
on several factors, but that each case is different.

"I see whether there is a good connection between the crime and the car,
the value of the car, whether they resisted arrest -- if the owner does not
think it's (the fine) fair, they can go to court," Meyers said.

Simirin said that several of his clients have decided to settle rather than
go to court, because the legal process is so expensive and time-consuming.

"In order to fight the case, they would have to lose the use of the car for
a year, because that's how long it takes to get through the courts,"
Simirin said. "They also have to pay an attorney and ultimately the case
might get ruled against them."

A Sept. 24 hearing date is set for the ACLU case.

1998 San Francisco Examiner

Checked-by: (Joel W. Johnson)