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California legal protections could be tested as Sessions expands civil asset forfeiture

Attorney General Jeff Sessions speaks at the Justice Department in March 2017. (Susan Walsh/AP.)
Attorney General Jeff Sessions speaks at the Justice Department in March 2017. (Susan Walsh/AP.)
Susan Walsh/AP

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Attorney General Jeff Sessions signed an order Wednesday directing the Justice Department to expand its use of civil asset forfeitures. The policy allows law enforcement to seize property from people who are suspected of a crime--before they're convicted or even charged. 

The policy is controversial within Sessions' own party. Critics, including California Rep. Darrell Issa (R-Vista), say the practice violates Americans' civil rights. Issa and several other Congressional Republicans have introduced legislation to tighten restrictions on asset forfeiture and to make it easier for people who lose property to get it back. 

Sessions defended his decision at the National District Attorney's Association in Minneapolis on Monday, calling forfeitures an important law enforcement tool to curb crime like drug trafficking. "No criminal should be allowed to keep the proceeds of their illegal activity," he said.

California passed legislation last year restricting civil asset forfeiture. State law now requires a criminal conviction for authorities to seize property valued under $40,000. That threshold was added to the bill to ensure police can still go after the property of suspected major drug traffickers.

The average forfeiture in California in 2013 was valued at about $5,100 by the Drug Policy Alliance.

In 2015, then-Attorney General Eric Holder moved to end "adoptive" forfeitures, where the federal government could take property seized by local police and forfeit it under federal law, circumventing state safeguards. In many parts of the country, this let local police keep 80 percent of assets seized by federal task forces like the DEA or ICE. Sessions' order this week reinstates "adoptive" forfeitures, reversing Holder's policy.

It remains unclear what changes at the federal level will mean for law enforcement in California.

SB 443, the bipartisan bill limiting civil asset forfeitures signed by Governor Brown last September, limited the federal loophole, also called "equitable sharing." Current California law prohibits state and local law enforcement from partnering with federal agencies on  "adoptive" forfeitures of property, except when the value of assets seized is over $40,000. 

Opponents of civil asset forfeiture say California's restrictions don't go far enough.

"Hopefully Congress will step in and provide meaningful, long-term solutions to this," said attorney Wesley Hottot on KPCC's Take Two. Hottot is part of the Institute for Justice, a group that advocates to limit civil asset forfeitures. "We can't keep treating people's property rights like they're a political football to be changed every time a new administration comes in."

Hottot said in some ways, Californians are shielded from the federal "adoption" forfeitures reinstated by Attorney General Sessions this week. But he pointed out Californians suspected of criminal activity can still have their assets seized if the value of their property exceeds $40,000.

"If you've got $40,001, they still don't need a criminal conviction," said Hottot.

Hottot also said he fears current California law encourages law enforcement to look for more property to seize. "Instead of just taking the $10,000 they find in your car, they'll take the $10,000 and the car to try to get over that 40,000 threshold and avoid the criminal conviction requirement," he said.

Hottot represented a San Diego medical marijuana distributor whose business was raided in January 2016 by drug enforcement agents. No charges have been filed in the case, and in May, the D.A. was ordered to return more than $100,000 seized from the distributor and his family.

Please click on the blue media player above to hear the full interview with Wesley Hottot on Take Two.