Ruling Kills Law Allowing Seizure of Cars Involved in Drug Deals, Prostitution

By J. Douglas Allen-Taylor
Tuesday July 31, 2007

The California Supreme Court ruled on Thursday against California ordinances allowing the seizure and forfeiture of vehicles used in picking up prostitutes or buying drugs, thus effectively ending the City of Oakland’s 10-year experiment in the practice. 

In a 4-3 vote in O’Connell v. City of Stockton, the court ruled on the narrow grounds that the city could not enact enforcement laws in areas that had already been addressed by the state. “The illicit commercial activities—prostitution and trafficking in controlled substances—that are the focus of the city’s vehicle forfeiture ordinance,” the court’s ruling read, “are matters of statewide concern that our Legislature has comprehensively addressed through various provisions of this state’s Penal and Vehicle Codes, leaving no room for further regulation at the local level.” 

The ruling invalidates similar drug-prostitution car seizure ordinances in 28 California cities, including Oakland. The ruling does not prevent police from towing automobiles involved in picking up prostitutes or drugs, however, but only the forfeiture. Automobile towings are covered under the state’s Vehicle Code. 

But according to the Santa Rosa attorney who represented the plaintiff in the City of Stockton lawsuit, the narrow grounds on which the Supreme Court made its decision leaves a large loophole for the auto confiscation to be reinstated at the state level. 

“The court said that the cities could not preempt state law in passing such ordinances,” attorney Mark Clausen said by telephone. “Unfortunately, that is just an invitation for the legislature to step in and pass a law allowing such ordinances. It’s a victory for now. Hopefully, the legislature won’t give the cities more authority.” 

Although the court asked attorneys involved in the case to submit briefs on whether the seizures themselves violated state or federal constitutional due process guarantees, the ruling noted that “because we conclude here that state law preempts the provisions of the Stockton Municipal Code pertaining to seizure and forfeiture of nuisance vehicles, thus invalidating those provisions and rendering them unenforceable, we need not address [those] issues.” 

That leaves unsettled whether the court considers seizure and holding of vehicles prior to a court hearing a violation of the state or federal constitution. The California legislature is currently considering legislation which would reinstate such non-hearing automobile seizures aimed at stopping illegal “sideshows”—provisions which allow for 30-day confiscation and not complete forfeiture as called for in the Stockton ordinance—and Thursday’s ruling would not affect that legislation. 

Stockton’s “Seizure and Forfeiture of Nuisance Vehicles” Municipal code provision that was the subject of Thursday’s ruling is virtually identical to Oakland’s so-called Beat Feet ordinance, which allows for the forfeiture of “any vehicle used to agree to or engage in an act of prostitution, or procure another person for the purpose of prostitution (pandering), or derive financial support or maintenance from the earnings or proceeds of prostitution (pimping) or illegally acquire or attempt to illegally acquire any controlled substance.” Oakland city officials had been closely following the O’Connell case, and the Oakland city attorney’s office said the Oakland Police Department had suspended enforcement of the city’s “beat feet” laws pending the court decision. 

In 2000, the California Supreme Court had validated Oakland’s “beat feet” ordinance in the Horton v. City of Oakland case. Thursday’s ruling effectively overturns the Horton ruling. 

Last Tuesday, on the recommendation of City Attorney John Russo, the Oakland City Council approved a $70,000 settlement in the case of Aram Sohigan v. The City of Oakland rising out of an auto seizure based on Oakland’s “beat feet” laws. In that case, Sohigan and two other plaintiffs were represented by Santa Rosa attorney Mark T. Clausen, the same attorney who represented the plaintiff in the Stockton case. 

Erica Harrold, public information officer for Russo, said that the court ruling means Oakland can no longer enforce the controversial “beat feet” ordinance. Harrold said that when the Oakland City Council returns from its summer break, it will have the option of either amending the “beat feet” ordinance to conform to the Supreme Court’s rulings or to eliminate the ordinance altogether. She said that the city attorney’s office would be prepared to present the council with its options at that time. 

Harrold noted that Russo had been on the City Council in 1997 when the “beat feet” ordinance was passed, and opposed it “because he thought it was unconstitutional.” Harrold said, however, that Russo “dutifully enforced the law” after he became city attorney “although he didn’t agree with it.”