Seize Mentality

Feds tighten reins on asset forfeiture

Last August, a fire in a Sebastopol building exposed a cannabis growing operation on site. Sonoma County detectives, invoking a federal asset-forfeiture program called “equitable sharing,” seized property and goods on the property that included 1,421 gold and silver coins and $1.4 million in cash.

But late last week, U.S. Attorney General Eric Holder all but ended the equitable sharing program, whereby the feds, state and local law enforcement agencies split the proceeds from the sale of confiscated goods.

The Sebastopol story, first reported in the Press Democrat, raised eyebrows since the local police didn’t charge the property owner with anything—and six months later still haven’t charged him with anything.

When asked about the whereabouts of the gold and silver last October, Sonoma County assistant district attorney Bud McMahon confirmed that it been turned over to the feds.

The reason, he said, was because “we don’t have any local state charges here. We don’t have any identified suspects. All the cash and the precious metals were sent to the federal government for asset forfeiture purposes.”

This week, McMahon told the Bohemian that Holder’s move would have “little or no impact” on the Sonoma County District Attorney’s office, and said he “doesn’t know any more about the case. I never read any police reports. I don’t know anything about it.”

McMahon added that the rationale for seizing the goods in Sebastopol was that law enforcement didn’t want to leave it there “for someone else to steal.”

And he downplayed the county’s use of the program. “We don’t use the federal government for asset forfeiture, hardly at all,” McMahon said.

The Washington Post was first out of the box with this story last week and noted in its report that Holder’s move came with some exceptions—guns, child pornography and explosives.

But, the Post noted, those items represented a fraction of the assets seized since 2008. Since then, the Post reported, the feds have made more than 55,000 seizures worth over $3 billion, much of it cash money.

The program has been widely criticized for being a convenient lever for local law enforcement to pad their budgets from the sale of the confiscated goods. Under the program, the feds keep 20 percent of the proceeds, and the localities get 80 percent.

Now, under the Holder ruling, absent a warrant or criminal charges being filed at the state or local level—exactly the scenario in the Sebastopol bust—local law enforcement agencies will no longer be able to seize assets using the federal program.

The program was of special value in California, where state asset forfeiture laws are not only more difficult to invoke, but are less harsh than the federal program, according to materials offered by a San Francisco law firm that’s been in the asset-forfeiture trenches.

The Shouse California Law Group, based in San Francisco, has represented clients caught up in asset-forfeiture cases all around the state. The firm’s website details how, in California, this program was leaned on by law enforcement.

“The laws passed by the California Legislature actually provide pretty good protections for individuals caught up in asset-forfeiture proceedings,” the firm notes.

“But equitable sharing allows California cops to get around those laws by handing property they have seized over to federal law enforcement agencies. That property then gets handled under federal asset-forfeiture laws, which are much harsher than California’s.”

McMahon said that assertion is “absolutely untrue,” and that whether it was the federal or state asset-forfeiture law, “it’s the same burden of proof.”

He added that the district attorney’s office relied almost entirely on state asset-forfeiture laws: “We do asset-forfeiture cases all the time, and we gladly accept them and we rarely turn them down.”

McMahon said he was unfamiliar with the equitable sharing 80–20 split and went on to admit, “I don’t know the rules of federal asset law, it may be broader, but we do not do that in Sonoma County.

“To suggest to me that it’s harder to do it from a state standpoint than from a federal standpoint—we’re as fair as we can be. We give property and money back all the time that’s been seized.”

The Holder move, he said, “is not going to change our workload or the number of asset forfeitures that we do.”

Shouse reports that in California, between 2000 and 2008, “more than $300 million worth of assets was seized in California through equitable sharing.”

The firm notes, “What this means is that California cops can do an end-run around the restrictions on asset forfeiture that were put in place by California’s own elected officials, and still make plenty of money for their departments.”

Sonoma County Library