ACLU CHALLENGES OAKLAND OVER CAR-SEIZURE LAW

Ordinance lets police take autos of alleged drug buyers

A pioneering Oakland city ordinance that allows police to seize alleged
drug buyers' cars is wobbly if not flat-out baseless under California law,
the American Civil Liberties Union said yesterday, citing an opinion by
state lawyers.

But the criticism was denounced with equal intensity by one of the city's
legal advisers, who told police they can continue to enforce the law with
confidence that there is no basis on which it could be overturned.

Deputy City Attorney Marcia Meyers said the critics' aimed their broadside
at the wrong target. They attacked a preliminary version of the law, not
the amended ordinance finally enacted last June by the City Council and now
on the books, she said.

The ACLU cited a blistering opinion by the state legislative counsel, which
reviewed Oakland's ``Operation Beat Feet'' law at the request of state
Senator John Vasconcellos, D-Santa Clara.

``We weren't even aware Oakland had changed the ordinance,'' said Rand
Martin, Vasconcellos' chief of staff.

Still, in contrasting the amended ordinance and state law, it's clear that
city and state lawmakers diverge in their views on seizing offenders'
vehicles as a way to deal with crime and blight. The Oakland law has not
been challenged in court, but the disagreement appears to be headed that
way.

``We are not raising issues based on an old ordinance,'' the ACLU's John
Crew said. ``We are aware of the minor amendments. They didn't address the
underlying conflict -- the government ought not take people's property,
sell it and keep the proceeds unless someone has been convicted.''

The legislative counsel's nonbinding critique said the Oakland law allows
more police intrusion than permitted under state legislation written to
help communities fight crime by seizing cars used in prostitution and drug
offenses. State law permits such seizures only in the case of a conviction.
Such police work is the exclusive territory of state law and cannot be
pre-empted by local action, according to the legislative counsel and the
ACLU.

Crew said Oakland should repeal its ordinance. And other cities thinking of
following Oakland's example should know they are on shaky ground, he said.

In January, in the first test of ``Beat Feet,'' police arrested 14 drug
buyers on East Oakland streets that have long served as a regional
drive-through drug market. Police seized the suspects' vehicles -- a move
sure to discourage others from coming to town to buy drugs, the law's
backers believe.

On Friday, a police sting on San Pablo Avenue netted 17 men on suspicion of
soliciting acts of prostitution. Many of them commuters on their way home
to the suburbs, these suspects, too, were deprived of their vehicles and
subjected to the mortification of ``Beat Feet.''

Meyers said the vehicle impound law is firmly set in the state Constitution
and in legal precedent. It is the product of months of research by her
staff and the Alameda County district attorney's office, and the questions
raised by the legislative counsel and the ACLU are nothing new, she said.

The critics say local vehicle seizure laws must conform to limitations that
state lawmakers built in to the vehicle and health and safety codes with
situations such as Oakland's in mind.

But Oakland and Alameda County lawyers found in their research that there
is another way. They say their legal foundation is just as solid.

For example, the amended Oakland law dropped a reference to the restrictive
vehicle code and substituted the state constitution, which allows cities
broad powers to deal with a public nuisance.

Similarly, although the health and safety code says property used in drug
trafficking can't be taken unless the offender has been convicted, the
Oakland law does not concern itself with stripping drug dealers of the
tools and profits of their trade.

Instead, Oakland treats an offender's vehicle as a contributor to urban
blight. Thus, the law is a means of nuisance abatement, not drug
enforcement, and nuisance abatement is not a matter of state concern alone,
the Oakland argument goes.

Crew said that calling a crime-fighting program a nuisance program does not
change the rules. Whatever the name, offenders must have been convicted
before their vehicles can be taken, he said. And, in drug cases, state law
allows the tactic to be used only in cases that involve certain substances
and certain amounts.

)1998 San Francisco Chronicle Page A13