HomeMy WebLinkAbout11/26/2002 - STAFF REPORTS (3) DATE: NOVEMBER 20, 2002
TO: CITY COUNCIL
FROM: CHIEF OF POLICE
PARTICIPATION IN THE STATE OF CALIFORNIA BUREAU OF NARCOTICS
ENFORCEMENT INLAND CRACKDOWN ALLIED (INCA) TASK FORCE
RECOMMENDATION:
It is recommended that the City Council approve an agreement with the State of
California Bureau of Narcotics Enforcement (BNE) to allow our continued participation in
the Bureau of Narcotics Enforcement's Inland Crackdown Allied (INCA) Task Force,
with an option to extend that agreement for an additional three years.
SUMMARY:
Each year since 1993, the City of Palm Springs has entered into an agreement with the
State of California Bureau of Narcotics Enforcement (BNE) to continue participation in
the Inland Crackdown Allied (INCA) Task Force. The State BNE reimburses the City for
the overtime worked by the officer participating in the Task Force. By participating in
this Task Force the City shares in any assets seized by this Task Force. In the past two
years the City of Palm Springs has received over $200,000 from our participation in this
Task Force.
BACKGROUND:
Since September 1993, the Palm Springs Police Department has been participating in
the Bureau of Narcotics Enforcement Inland Crackdown Allied (INCA) Task Force by
having an officer assigned to that Task Force. The Bureau of Narcotics Enforcement
supports the efforts by reimbursing the City for the overtime worked by the officer
assigned to the Task Force. The City also shares in any assets seized by this Task
Force. In the past two years the City has received over$200,000 by participating in this
Task Force.
On September 4, 2002, during a City Council meeting an issue was raised by two
private citizens that asset seizure laws were a violation of "due process" and asked that
City Council not approve the Police Department's involvement with the INCA task force.
There was also an issue raised about a large settlement lawsuit by the City of Brea on
the use of informants, which allegedly creates additional liability for the INCA Task
Force members. The City Council asked the City Attorney to review the issues raised
and ensure that the INCA task force was in compliance with the law. The Chief of
Police was also directed to bring the issue before the Police Advisory Committee.
Attorney Anthony Taylor has reviewed the law, policies and procedures related to asset
seizure and use of informants. His analysis and recommendations are attached to this
report. The issue was brought before the Police Advisory Committee. The Police
Advisory Committee passed a motion supporting the Chief of Police in the arrest and
prosecution of drug offenders. Several members of the Police Advisory Committee
were also members of the Human Rights Commission. These members recommended
that the discussion of drug legalization, asset seizure procedures and related drug laws
was best held in the Human Rights Commission forums and referred the citizens with
this case to that particular commission.
Chief of Po'fiie/
r/ !
City Manager
Attachment:
1. Analysis of Asset Seizure Laws and Informants
2. Agreement
3. Minute Order
0
MEMORANDUM
TO: Chief Gary Jeandron. CC: Mr. David Ready, City
Manager; Mr. Dave Aleshire,
FROM: City Attorney City Attorney
DATE: November 5, 2002 FILE NO. 04195-0010
RE: Legal Sufficiency Review of the Inland Crackdown Allied (INCA) Task Force
Policies and Procedures
I. INTRODUCTION. _
Our office has recently reviewed the legal sufficiency of INCA Taskforce policies and
procedures as set forth in Chapters 11.0 and 17.0 of the State of California's Bureau of Narcotic
Enforcement (BNE) manual. The policies and procedures within this Chapter are based on
applicable State law, as set forth in Penal Code § 701.5, Health & Safety Code §§ 11469 et. seq.
and applicable federal law. Specifically, our review has focused on two issues concerning the
INCA Taskforce: (1) the legality of the asset forfeiture provision of the taskforce, and (2) the use
of informants, and particularly juvenile informants, in the taskforce.
II. SUMMARY CONCLUSIONS.
A. Asset Seizure Review.
Upon our review, it is,our opinion that the INCA Taskforce polices and procedures that
our office has reviewed are most likely in reasonable accordance with current federal and state
law. Narcotics asset forfeiture has been given extensive treatment by both the United States
Congress and by the California State Legislature in enacting comprehensive legislation. The
United States Supreme Court and the California State courts have likewise scrutinized asset
forfeiture legislation, and routinely upheld the seizure of property used in the course of
distribution of narcotics.
Seizure before the conclusion of criminal proceedings is often necessary so that the
subject property cannot be removed to another jurisdiction, destroyed, or concealed, before a
court has the opportunity to determine whether the property is properly subject to forfeiture. The
act of seizure itself camiot be equated to forfeiture of the seized property, especially since
persons claiming an interest in the property are protected by statute and can seek redress from the
court to obtain the return of the seized property.
Similar to that of other law enforcement applications, the City's most significant liability
issue here is ensuring that there is sufficient probable cause that the assets seized are the fruit of
illegal narcotics transactions; rather than property being held by innocent owners. Though we
calmot predict whether the law in this area may change at some point in the future, seizure before
the conclusion of criminal,proceedings appears reasonably necessary to avoid property from
IRV#24836 v1
-1-
�A3
Chief Gary Jeandron
November 6, 2002
Page 2
being removed to another jurisdiction, destroyed, or concealed, thus thwarting the efforts of law
enforcement.
B. Use oflnformants—Juvenilelnformants.
Penal Code § 701.5 requires that the Police Department secure a court order before using
a minor as an informant as part of a narcotics taskforce. This section does not, however,
completely ban the use of minors as informants.
Section 11.4 of the BNE manual, when read as a whole, seems unclear as to whether a
court order is required before the use of juveniles as informants in accordance with Penal Code §
701.5. We rmderstand that formal clarification to this policy through revising the manual is not
plausible since State approval is required before the BNE manual can be revised.
As such, we recommend the following action be taken: (1) the Palm Springs Police
Department adopt its own policy discouraging the use of juvenile infonnants and only permitting
the use of juvenile informants in narcotics transactions if a court order is First obtained
authorizing such use; and (2) The Department meet with other taskforce members and adopt a
resolution prohibiting all INCA taskforce members from using juveniles as infonnants in
narcotics transactions unless a court order is first obtained authorizing this use.
I11. ANALYSIS.
A. Does Narcotics Asset Foifeiture Before the Conclusion of Criminal Proceedings
Violate Due Process?
Generally, a person cannot be deprived of property under the Due Process Clause of the
Fifth Amendment without due process of law. Case law has interpreted this general rule to
require that individuals receive notice and an opportunity to be heard before the govermnent can
deprive them of property in most instances. United States v. James Daniel Good Real Property,
510 U.S. 43, 48, 114 S.Ct.492, 126 L.Ed. 2d 490 (1993)..
However, in the context of narcotics asset forfeiture, the United States Supreme Court
has determined that such pre-hearing seizures do not offend Due Process where the item being
seized is the type of property that could be removed to another jurisdiction, destroyed, or
concealed, if the owner was given prior warning of the confiscation. See id.; Calero-Toledo v.
Pearson Yacht Leasing Co., 416 U.S. 663, 679, 94 S.Ct: 2080, 40 L.Ed. 2d 452 (1974). As such,
seizure is often required before the conclusion of a criminal proceeding because the subject
property could be removed to another jurisdiction, destroyed, or concealed. See id. In effect, a
court could not reasonably conduct a hearing concerning the merits of seizure, where the subject
IRV#24836 v1 -2-
9 A
Chief Gary Jeandron
November 6, 2002
Page 3
property is removed from the jurisdiction, concealed or destroyed before a healing is held on the
merits of seizure.
Based on this standard, courts have determined that in most instances real property is not
the type of property could be removed to another jurisdiction, destroyed, or concealed, if the
owner was given prior warning of the confiscation.' Good, 510 U.S. at 48 (finding pre-hearing
seizure of real property to violate Due Process); United States v. $129,727.00 U.S. Currency, 129
F.3d 486, 493 (9th Cir. 1997) (explaining that the distinction between movable and non-movable
property is dispositive on whether a pre-deprivation hearing is required). As such, the Court in
$129,727.00 U.S. Currency held that the United States Supreme Court "explicitly did not require
any additional Due Process safeguards for movable personal property such as currency . . ." Id.
at 493.
Chapter 17.5 the BNE manual sets forth "Real Estate Seizure Criteria", which includes
the initial requirement that "[p]ior to the seizure of any real property, approval shall be obtained
from the state or federal asset_ forfeiture attorney." , Additionally, after the real property is
appraised, a title search is completed and probable cause for seizure is reviewed, "[t]he state or
federal asset forfeiture attorney will request a hearing to determine if a seizure is necessary to
preserve the property pending the outcome of the proceedings." Id., at 115.
Chapter 17.5 thus addresses the United States Supreme Court's concerns that real
property could only be seized after affording the owner the opportunity to be heard. Good, 510
U.S. at 48. Likewise, this Chapter is also in accordance with Health & Safety Code § 11471,
subdivision (e), which only allows for the pre-hearing seizure of real property under "exigent
circumstances."2
In other contexts where a pre-deprivation hearing is not required, such as in the seizure
of cash, the property seized is not automatically made forfeitable under existing State law.
Health & Safety Code § 11488.4, sub (a). Rather, any person having interest in the seized
property can object to the seizure by filing a motion with the Court for the return of the property,
or contest a forfeiture proceeding which must be promptly brought by the district attorney in any
' 21 U.S.C. § 985, as signed into law by President Clinton on April 25, 2000, requires that real
property be seized before a hearing only in exigent circumstances. Stefan D. Cassella, The Civil
Asset Forfeiture Reform Act of 2000: Expanded Government Forfeiture Authority and Strict
Deadlines Imposed on All Parties, 27 J. Legis. 97, 114 (2001).
2 Chapters 17.9, 17.16 and 17.17 further set forth asset forfeiture guidelines for vehicle, cash and
other asset seizures. Read in conjunction with the strict real estate seizure requirement, these
provisions are reasonably sufficient in requiring that probable cause be first established before
seizuue can take place and by requiring notice to interested parties.
MY#24836 vl _3-
a�4 s
Chief Gary Jeandron
November 6, 2002
Page 4
event, no later than one year after seizure of the property. Health & Safety Code §§ 11488.4,
subs. (a), (g), 11488.5.
The State bears the burden of proving that the property is forfeitable. People v.
$9,632.50 United States Currency, 64 Ca1.App.4th 163, 169 fii. 4 (1998). In marry circumstances
initiation and resolution of pending, criminal proceedings are required before forfeiture can
occur. For example, where seizure of a vehicle or real property occurs or seizure is made of less
than $25,000 cash, the defendant must first be convicted of a specific narcotics offense in an
underlying or related criminal proceeding within five years of seizure of the property for
forfeiture to occur. Health & Safety Code § 11488.4, subd. (i); People v. $4,503 United States
Currency, 49 Cal.AppAth 1743, 1747 (1996).
Overall, the application of these procedural safeguards are left to the courts once a
seizure has occurred, but these additional procedures serve to underscore that asset forfeiture is
not automatic upon seizure and that anyone having an interest in the property can seek proper
redress from the court.
B. Compliance with Health & Safety Code§§ 11469 et seq.
Health & Safety Code § 11469 requires that seizing agencies have a manual detailing the
statutory grounds for forfeiture and applicable policies and procedures. Health & Safety Code §
11469, sub. (d). This manual shall include procedures for prompt notice to interest holders, the
expeditious release of seized 'property, and the prompt resolution of claims concerning innocent
ownership. Id. Seized assets must also be kept in separate funds or accounts, and agencies must
protect seized property to preserve its value and avoid any appearance of impropriety. Health &
Safety Code § 11469, subs. (f) — 0). Appropriate and ongoing training is also required to ensure
that these standards are met. Health & Safety Code § 11469, sub. (e).
IIere, the BNE manual provides reasonable mechanisms to ensure prompt notice to
interest holders, the expeditious release of seized property, and the prompt resolution of claims
concerning innocent ownership. (Chapter 17.5, ¶ 4, requires a preliminary title search for real
property; Chapter 17.8, ¶ le, in. requires a determination of the owner and lien holder's interest
in a vehicle before seizure as well as resolution of"imiocent ownership" claims; and 17.16, ¶ lg
requires a determination of owner and lien holder's interests in other assets.)
Further, the BNE manual also provides reasonable policies that seized assets must also be
kept in separate finds or accounts, and agencies must protect seized property to preserve its
value and avoid any appearance of impropriety. For example, separate financial reports are
required to be prepared for the seizure of fungible assets. (Chapter 17.8, ¶ le separate financial
report for vehicle seizures; 17.16, ¶ le separate financial report for other assets.) All currency
that is seized must be comited at the scene in the presence of one other person and placed into a
IRV#24836 vl _4_
a ,q- �
Chief Gary Jeandron
November 6, 2002
Page 5
container and sealed. Chapter 17.17. A property receipt form is required to be filled out for all
assets seized and a financial investigation number is assigned upon the commencement of a
financial investigation. Chapters 17.19, 17.20 & 17.25.
The BNE manual also provides under Chapter 17.2 that taskforce officers' attendance at
advanced asset forfeiture classes held by the California District Attorneys Association is
required, and that additional training is to be provided. This provision is most likely in
reasonable accordance with the appropriate and ongoing training requirement to ensure that
training standards are met. (Health& Safety Code § 11469, sub. (e).)
Overall, the BNE manual appears to adequately address compliance with Health &
Safety Code § 11469.
C. Use oflnformants in Conjunction with Narcotics Taskforce Enforcement.
Our office has reviewed Section 11.0 of the BNE manual concerning the use of
informants within the INCA Taskforce. Additional concerns have also been raised about the use
of informants, and particularly the use of minors under the age of 18, in light of recent California
legislation restricting the use of informants.
This legislation, as codified by Penal Code § 701.5, restricts the use of minor informants
as follows:
"(a) Notwithstanding subdivision (b), no peace officer or agent of a peace officer
shall use a person who is 12 years of age or younger as a minor informant.
(b) No peace officer or agent of a peace officer shall use a person under the age of
18 years as a minor informant, except as authorized pursuant to the Stop Tobacco
Access to Kids Enforcement Act (Division 8.5 (commencing with Section 22950)
of the Business and Professions Code) for the purposes of that act, unless the
peace officer or agent of a peace officer has obtained an order from the court
authorizing the minor's cooperation.
(c) Prior to issuing any order pursuant to subdivision (b), the court shall find, after
consideration of (1) the age and maturity of the minor, (2) the gravity of the
minor's alleged offense, (3) the safety of the public, and (4) the interests of justice,
that the agreement to act as a minor informant is voluntary and is being entered
into knowingly and intelligently.
(d) Prior to the court making the finding required in subdivision (c), all of the
following conditions shall be satisfied:
IRV#24836 vI _5_
a � 7
Chief Gary Jeandrou
November 6, 2002
Page 6
(1) The court has found probable cause that the minor committed the alleged
offense. The finding of probable cause shall only be for the purpose of issuing the
order pursuant to subdivision (b), and shall not prejudice the minor in any firture
proceedings.
(2) The court has advised the minor of the mandatory minimum and maximum
sentence for the alleged offense.
(3) The court has disclosed the benefit the minor may obtain by cooperating with
the peace officer or agent of a peace officer.
(4) The minor's parent or guardian has consented to the agreement by the minor
unless the parent or guardian is a suspect in the criminal investigation.
(e) For proposes of this section, "minor informant" means a minor who
participates, on behalf of a law enforcement agency, in a prearranged transaction
or series of prearranged transactions with direct face-to-face contact with any
party, when the minor's participation in the transaction is for the purpose of
obtaining or attempting to obtain evidence of illegal activity by a third party and
where the minor is participating in the transaction for the purpose of reducing or
dismissing a pending juvenile petition against the minor."
Overall, Penal Code § 701.5 requires that the Police Department secure a court order
before using a minor as an informant as part of a narcotics taskforce. This section does not,
however, completely ban the use of minors as inforniants.
Here, Section 11.4 of the BNE manual provides that "[t]he use of juveniles as informants
should be avoided." The manual also requires that "the prosecutors office of [the] jurisdiction
should be contacted for applicable law and local policies"before using juvenile informants.
However, the policy also seems to lack clarity in providing that "[a]pproval must also be
obtained from the courts or parents/guardian, whichever is applicable." Penal Code § 701.5
requires that a court order be obtained before the use of juvenile informants in nearly all uses of
juveniles as infornants and that the court determine whether parental consent has been properly
obtained before granting any such order permitting the use of juveniles as informants.
Thus, Section 11.4 of the BNE manual, when read as a whole, seems unclear as to
whether a court order is required before the use of juveniles as informants in accordance with
Penal Code § 701.5, or whether consent by the minor's parent alone would suffice, counter to
IRV#24836 vI
1.1
Chief Gary Jeandron
November 6, 2002
Page 7
Penal Code § 701.5. We understand that formal clarification to this policy through revising the
above language is not plausible since State approval is required before the BNE manual can be
revised.
As such, we recommend the following action be taken: (1) the Palm Springs Police
Department adopt its own policy discouraging the use of juvenile informants and only permitting
the use of juvenile infonnants in narcotics transactions if a court order is first obtained
authorizing such use; and (2) The Department meet with other taskforce members and adopt a
resolution prohibiting all INCA Taskforce members from using juveniles as informants in
narcotics transactions unless a court order is first obtained authorizing this use.
IRV#24836 vI -7-
1 '
November 20, 2002
To: MEMBERS OF THE PALM SPRINGS CITY
COUNCIL
From: LANNY SWERDLOW
The following information concerns the item on
the Consent Calendar relating to the renewal of
the Contract with the INCA Task Force.
PRESS R�L�AS�
PROTEST TO BE HELD OVER
POLICE CHIEF JEANDRON'S
BACKDOOR RESUBMISSION OF
INCA TASK FORCE CONTRACT
For immediate release: November 20, 2002
Contact: LANNY SWERDLOW at 760-799-2055.
(See note at end of press release)
A protest by members of the American Civil Liberties Union and others citizens will be
held in front of the Palm Springs City Council Chambers on Wednesdav,November 20 at
6:30 p.m. concerning the back door resubmission by Police Chief Jeandron of the Inland
Crackdown Allied (INCA) Task Force contract(please see attached sheets for
information on the contract). At 7 p.m. the protesters will attend the City Council meeting
where they will make statements at the public comment section about the attempt by
Police Chief Jeandron to block public discussion on this issue.
On September 4, 2002, the Palm Springs City Council was to consider the renewal of the
INCA Contract as part of the Consent Calendar which included approving an awning for
the Palm Springs Airport and payroll matters among other housekeeping items. There is
no public discussion of the issues on the Consent Calendar. Lanny Swerdlow,
representing the American Civil Liberties Union and Susanmarie Weber, a member of the
Libertarian party, appeared before the City Council asking that the INCA Contract
renewal be pulled from the Consent Calendar and considered as a regular item so that
public comment can be presented to the Council. Questions regarding the civil liberty
aspects of INCA's operation were raised as well as possible financial liability
consequences of Palm Springs participation on the Task Force.
The Council unanimously voted to pull the item from the Consent Calendar and send it to
the city's legal staff and to the Police Advisory Board for consideration and advice. At the
September 17, 2002 meeting of the Police Advisory Board, the Board put consideration
of the INCA Contract on the agenda of the October 15 Board Meeting. When citizens
concerned about the issue showed up at October 15 meeting, they were told that the issue
will be turned over to the Human Rights Commission as the Board felt it was a more
appropriate forum. Most of the people who came to testify left but later on in the meeting,
the Board voted to support the Police Chief in the arrest and prosecution of drug
offenders, but made no mention of INCA.
On Tuesday November 19 at 6 p.m., Lanny Swerdlow was informed that the INCA
Contract was back on the Consent Calendar for consideration the next day. "I couldn't
believe this was happening," Lanny exclaimed. "We had been led to believe that the
INCA contract was going to be considered by the legal staff and, now the Human Rights
Commission, before it went to the City Council so that public comment could be obtained
for the City Council's consideration. And suddenly it is back on the Consent Calendar
where public input is not allowed."
No one that had testified either before the City Council or the Police Advisory Board was
informed that the INCA contract was back on the Consent Calendar. In addition when the
Police Advisory Board was informed at their meeting last night that the INCA contract
was back on the Consent Calendar for consideration by the City Council the next day,
one member commented that when they discussed INCA at the October meeting, that
they expected the Human Rights Commission would consider the issue before it would
go to the City Council.
In addition, Swerdlow had called the City Attorney's office wanting to know what the
City Attorney's office was doing to research the issues raised at the September 4, 2002
council meeting. "I was told that this was being handled by outside legal staff and
someone would return my call. No one returned my call so I called a second time but no
one returned my call again. Although I left my number and asked to be kept informed, no
one ever contacted me or anyone else that I know of concerning any legal opinion issued
by the city attorney's office. I did not learn about it until 6 p.m. Tuesday night when I
accessed the City Council's agenda on their web site. What is most interesting about the
opinion is not what it says, but what it doesn't say regarding the financial liabilities that
Palm Springs might incur through its participation in the INCA Program."
According to Swerdlow, "Police Chief Jeandron has made an end run around the City
Council's original decision in order to evade public discussion of the issue by
resubmitting the contract to the city council as a Consent Calendar item before it had
been considered by the Human Rights Commission. This is just plain wrong. I am asking
Chief Jeandron to do the right thing and remove the INCA Contract renewal from the
Consent Calendar. I ask him to support the Police Advisory Board's request that the
Human Rights Commission hold a public hearing on the issues raised at the September 4,
2002 City Council meeting and for this hearing to be conducted before the INCA contract
is resubmitted to the City Council."
Attached to this press release are copies of Swerdlow's council
presentation and correspondence concerning this issue. The INCA contract
is too long to FAX, but you may be able to obtain a copy of it by contacting
either Chief Jeandron's office or the City Clerk's office. The Legal Opinion
of the City Attorney's office can be obtained by accessing the Palm Springs
City website at http://www.ci.paim-springs.ca.us/ and selecting City Council
agenda, go to the Consent Calendar and click on the item relating to the
INCA contract renewal.
NOTE: Please understand that Lanny Swerdlow works from 7:30
a.m. to 12 noon on Wednesday and cannot receive phone calls
at work. He will be available after he gets off work. If you would
like to talk or do an interview with him, call 760-799-2055 and
leave a voice mail message and he will call you back as soon as
he gets off work. Thank you for your understanding - he has to
earn a living just like you.
DATE: NOVEMBER 20, 2002
TO: CITY COUNCIL
FROM: CHIEF OF POLICE
PARTICIPATION IN THE STATE OF CALIFORNIA BUREAU OF NARCOTICS
ENFORCEMENT INLAND CRACKDOWN ALLIED (INCA) TASK FORCE
RECOMMENDATION:
It is recommended that the City Council approve an agreement with the State of
California Bureau of Narcotics Enforcement (BNE)to allow our continued participation in
the Bureau of Narcotics Enforcement's Inland Crackdown Allied (INCA) Task Force,
with an option to extend that agreement for an additional three years.
SUMMARY:
Each year since 1993, the City of Palm Springs has entered into an agreement with the
State of California Bureau of Narcotics Enforcement (BNE) to continue participation in
the Inland Crackdown Allied (INCA) Task Force. The State BNE reimburses the City for
the overtime worked by the officer participating in the Task Force. By participating in
this Task Force the City shares in any assets seized by this Task Force. In the past two
years the City of Palm Springs has received over$200,000 from our participation in this
Task Force.
BACKGROUND:
Since September 1993, the Palm Springs Police Department has been participating in
the Bureau of Narcotics Enforcement Inland Crackdown Allied (INCA) Task Force by
having an officer assigned to that Task Force. The Bureau of Narcotics Enforcement
supports the efforts by reimbursing the City for the overtime worked by the officer
assigned to the Task Force. The City also shares in any assets seized by this Task
Force. In the past two years the City has received over$200,000 by participating in this
Task Force.
On September 4, 2002, during a City Council meeting an issue was raised by two
private citizens that asset seizure laws were a violation of "due process" and asked that
City Council not approve the Police Department's involvement with the INCA task force.
There was also an issue raised about a large settlement lawsuit by the City of Brea on
the use of informants, which allegedly creates additional liability for the INCA Task
Force members. The City Council asked the City Attorney to review the issues raised
and ensure that the INCA task force was in compliance with the law. The Chief of
Police was also directed to bring the issue before the Police Advisory Committee.
r� H
j
Attorney Anthony Taylor has reviewed the law, policies and procedures related to asset
seizure and use of informants. His analysis and recommendations are attached to this
report, The issue was brought before the Police Advisory Committee. The Police
Advisory Committee passed a motion supporting the Chief of Police in the arrest and
prosecution of drug offenders. Several members of the Police Advisory Committee
were also members of the Human Rights Commission. These members recommended
that the discussion of drug legalization, asset seizure procedures and related drug laws
was best held in the Human Rights Commission forums and referred the citizens with
this case to that particular commission.
Chief of�P,3"fi1
City Manager
Attachment:
1. Analysis of Asset Seizure Laws and Informants
2. Agreement
3. Minute Order
'7 n n
September 4, 2002
To: PALM SPRINGS CITY COUNCIL
From: LANNY SWERDLOW
ACLU Desert Pass Chapter
Subject: Request for Consent Calendar Item #7 concerning approval of
contract with Inland Crackdown Allied (INCA) Task Force be pulled from
Consent Calendar for further research and citizen input.
My name is Lanny Swerdlow. I represent the Desert Pass Chapter of the American Civil
Liberties Union.
You have a recommendation by the Chief of Police for continued participation in the
Inland Crackdown Allied Task Force, Not only is the name frightening, but what it does
is frightening. With the lure of asset forfeiture, it uses the siren song of money for
nothing to corrupt even the most progressive of governments.
The ACLU believes that asset forfeiture laws violate the 14th amendment in that it
deprives a citizen of their property without due process of law.
Judge James Gray, Superior Court Judge for the state of California,has written, "The
statutory scheme involving asset forfeiture is unprecedented in U.S. legal history. Not
only can property be forfeited without a criminal conviction, it is estimated that about 80
percent of the people whose property is taken are not even charged with a criminal
offense. In other words, property owners are presumed to be guilty. Never before in the
history of U.S.jurisprudence has the burden been placed on individual citizens to prove
their innocence."
The U.S. Supreme Court has upheld asset forfeiture saying that it is against the property
and not the individual. But having your home, car or business seized certainly seems like
a punishment. Hopefully this decision will eventually be reversed like the June 2002
decision declaring that it is unconstitutional to execute a mentally retarded individual,
which reversed the ruling in 1989 that allowed such executions.
Just because the Supreme Court upheld a bad law doesn't mean you should embrace it.
One would hope that as an ethical leader,you would oppose any government program
that denies citizens the rights and liberties provided for in our constitution.
However if you are loath to do the right thing for ethical and constitutional reasons,
perhaps the bottom line might motivate you.
The City of Palm Springs is a partner in INCA and receives 1/15`h of all assets seized.
over
1
When you receive benefits from a program, you are also liable for any losses.
Newspapers constantly report busts go awry where police break into the wrong house and
either injure or even kill someone. The victims of mistaken raids have obtained lawsuits
totaling millions of dollars. INCA also makes extensive use of informants and just last
month the city of Brea paid one million dollars to settle a lawsuit for not providing
adequate police protection to an informant who was murdered.
Nowhere in this contract do I see either a hold harmless or indemnity clause. The city of
Palm Springs might very well be liable for any negligent or malicious actions taken by
this agency.
In addition, Palm Springs Police Officer Paul Abshire informed me that he no longer
represents the city on the task force and due to budgetary restraints, Palm Springs will not
have a representative to INCA until January. So I see no need to rush to judgment and
have this item included in today's consent calendar along with fabric roofs and payroll
warrants.
I hope you realize that this is an issue of significant concern that needs further discussion.
I ask for one city council member to pull this from the consent calendar to allow for
additional research and citizen input. Thank you.
2
AMERICAN CIVIL LIBERTIES UNION
DZ3ZnT PASS CHAPTIn • Steering Committee
PO BOX 739, Palm springs CA 92263-0739
Phone - 760-324-2972
Email - lannyswerdlow@earthlink.com
September 5, 2002
Gary Jeandron
Chief of Police
City of Palm Springs
200 South Civic Drive
Palm Springs CA 92262
Dear Police Chief Jeandron,
I would like to thank you for a frank and forthright discussion following Wednesday's
meeting of the Palm Springs City Council. It is only by openly sharing our viewpoints
that we can come to an understanding of the issues at hand.
As suggested, I will contact Commander McCabe about working with the Police
Advisory Board on the INCA contract and the issue of asset forfeiture. I have enclosed
with this letter a copy of the letter I am sending to Commander McCabe.
As I mentioned during our conversation, I am enclosing a signed copy of California
Superior Court Judge James Gray book, Why Our Drug Laws Have Failed and What We
Can Do About It. I believe it is the most comprehensive, literate and easily understood
compendium on this enormously complex and emotionally charged subject, Luminaries
from Walter Cronkite to New Mexico Governor Gary Johnson have praised this book.
Their statements can be read on the back cover of the book as well as provide you
information on Judge Gray's extensive credentials.
I look forward to a cooperative and stimulating working relationship with your office and
the Police Advisory Board in regards to exploring the issues I raised at the September 4
City Council meeting. If at any time you have any questions, need additional information
or would like to discuss any relevant issue, please contact me anytime at your
convenience.
Sincerely,
Lanny Swerdlow
Cc: Ron Oden
AMERICAN CIVIL LIBERTIES UNION
DZZZnT PASS 2WTZn - Steering Committee
PO BOX 739, Palm springs CA 92263-0739
Phone - 760-324-2972
Email - lannyswerdlow@earthlink.com
September 5, 2002
Commander Michael McCabe
City of Palm Springs Police Department
200 South Civic Drive
Palm Springs CA 92262
Dear Commander McCabe,
At the September 4th Palm Springs City Council meeting, I was one of two people
addressing the council to request that the INCA Contract be pulled from the Consent
Calendar to allow for further research and citizen input. I have attached to this letter a
copy of the presentation I made to the City Council which contains my concerns about
the contract.
After our presentations, Councilmember Ron Oden requested that the INCA contract be
pulled from the Consent Calendar and by a unanimous vote of the council sent it to the
legal staff and the Police Advisory Board. In a discussion following the meeting, Chief
Jeandron suggested that I contact you so that I and other interested community members
can work with the Police Advisory Board in the preparation of a report back to the City
Council.
I would appreciate the opportunity to meet with you before these issues are brought
before the Police Advisory Board so that I may learn how the Police Advisory Board
operates and how issues are normally handled when referred to the Board by the City
Council. I will be out of town through September 13,but am available to meet with you
anytime at your convenience after I return.
Thank you very much for your time and attention to this matter.
Sincerely,
Lanny Swerdlow
Cc: Ron Oden
Gary Jeandron
AMERICAN CIVIL LIBERTIES UNION
DZ3ZnT PASS CHAPTIn
PO Box 739, Palm Springs CA 92263-0739
Phone - 760-327-2623
Email - gfrandsen@aol.com
October 8, 2002
Citizens Police Advisory Board of Palm Springs
Palm Springs Bureau of Police
200 South Civic Drive
Palm Springs CA 92262
Dear Advisory Board Members,
As you are aware, on September 4, 2002, the issue of whether or not the City of Palm
Springs should continue its participation in the Inland Crackdown Allied(INCA)Task
Force was pulled from the Palm Springs City Council Consent Calendar and by
unanimous vote referred to the Legal Staff and the Citizen's Police Advisory Board.
A discussion on INCA Task Force is on the October 15 meeting agenda. As you can see
from the materials accompanying this letter, the issue of asset forfeiture is complex and
complicated. The continuation of Palm Spring's participation in INCA should be
considered carefully. The Desert Pass Chapter of the American Civil Liberties Union
respectfully suggests that the Board appoint a committee to look into the matter and issue
a report to the Board before it makes its recommendation to the City Council.
Enclosed you will find a variety of articles dealing with the legal and public policy
aspects of asset forfeiture. If you have any questions or need additional information,
please contact me anytime at your convenience.
Sincerely,
George Frandsen
President
AMERICAN CIVIL LIBERTIES UNION
D13Z T PASS >:H TZn - Steering Committee
PO BOX 739, Palm Springs CA 92263-0739
Phone - 760-324-2972
Email - lannyswerdlow@earthlink.net
October 8, 2002
Citizens Police Advisory Board of Palm Springs
Palm Springs Bureau of Police
200 South Civic Drive
Palm Springs CA 92262
Dear Advisory Board Members,
I apologize for not being able to address you personally as I did at the September
meeting, but unfortunately due to scheduling conflicts I cannot be here. This letter
contains the information and request I would have presented to you if I were present.
There are many ramifications to the issue of asset forfeiture. When a governmental body
chooses to utilize this method of law enforcement, it should do so only after an informed
and open discussion is held with interested and concerned citizens.
There are a number of questions that need to be answered in order for a rational and
justifiable conclusion to be made as to whether Palm Springs should participate as a
member of the INCA Task Force.
1. What percent of the people who were subjected to asset forfeiture were convicted of a
crime?
2. According to the Mission Statement printed in the Memorandum of Understanding
"The INCA Task Force is a multi-agency narcotic task force with participation by
federal, state and local agencies targeting major Colombian and Mexican drug cartels
within the Inland Empire region of the Los Angeles HIDTA, with emphasis in Riverside
County." How effective has INCA been in arresting, prosecuting and imprisoning major
Colombian and Mexican drug cartel traffickers? What was the role of asset forfeiture in
their arrests and prosecutions?
3. The final part of the Mission Statement seeks to "significantly diminish the availability
of these drugs to the Columbian and Mexican organizations and apprehend the
responsible offenders, thereby increasing public safety?" How effective has INCA actions
been in reducing the supply of drugs to the cartels? What role did asset forfeiture have in
any actions taken against the cartels?
4. The U.S. Congress as well as a number of states such as Oregon and Utah have
required that a conviction must be obtained in order to pursue asset forfeiture. Should
Palm Springs adopt similar requirements in asset forfeiture proceedings?
1
Citizens Police Advisory Board of Palm Springs
Page 2
October 8,2002
5. The city of Palm Springs receives about 1/15`h of all monies derived from asset
forfeitures undertaken by INCA. As a beneficiary of the program, the city may also be
liable for any losses. Is the city of Palm Springs protected from any lawsuits arising out
of either negligent or malicious actions of the INCA task force?
6. Last June the city of Brea agreed to pay one million dollars to a family who sued the
city for not providing adequate protection to their son who, while carrying out his
obligations as an informant for the Brea Police, was murdered. Is the city of Palm Springs
liable for the injury or death of any informant used by INCA?
I am sure that other people will have additional concerns that should be addressed. These
questions cannot all be answer in one Police Advisory Board meeting, but require a
thorough study and analysis. A committee should be formed and composed of individuals
who can raise the many sides of this complex issue.
The committee should have members from:
The Citizen's Police Advisory Board
Palm Springs Police Department
Civil Liberty organizations
Drug Law Reform organizations
Lawyer organizations
Judiciary members
Additional citizens who have an interest in this issue.
There are number of issues, such as the ones dealing with liability, that require legal
opinions. Since the Palm Springs City Council also directed this issue to be studied by
their Legal Staff, then representatives from the city attorney's office should also be a part
of the committee.
Thank you very much for your time and attention to this very important matter. I have
appreciated your willingness to consider this issue and I would very much like to be a
member of this study committee.
Sincerely,
Lanny Swerdlow
z
MINUTE ORDER NO.
APPROVING AN AGREEMENT WITH THE STATE OF
CALIFORNIA BUREAU OF NARCOTICS ENFORCEMENT
(BNE) TO ALLOW OUR CONTINUED PARTICIPATION IN
THE BUREAU OF NARCOTICS ENFORCEMENT'S
INLAND CRACKDOWN ALLIED (INCA) TASK FORCE,
WITH AN OPTION TO EXTEND THAT AGREEMENT FOR
AN ADDITIONAL THREE YEARS.
I HEREBY CERTIFY THAT this Minute Order, approving an agreement with the State of
California Bureau of Narcotics Enforcement (BNE) to allow our continued participation in
the Bureau of Narcotics Enforcement's Inland Crackdown Allied (INCA) Task Force,
with an option to extend that agreement for an additional three years, was adopted by
the City Council of the City of Palm Springs in a meeting thereof held on the 20th day of
November, 2002.
City Clerk