Vol. 22 No. 9- Local Laws Authorizing Vehicle Seizures Unlawful

July 30, 2007

A divided California Supreme Court ruled, on July 26, 2007, that local ordinances which allow for the seizure of vehicles of those arrested on suspicion of buying drugs or soliciting prostitutes were unconstiutional. In the case of O’Connell v. City of Stockton, the Court ruled that such laws violate California’s Constitution, Article XI, section 7, which authorizes cities and counties to enact local ordinances which are “not in conflict” with the state’s “general laws.”

The City of Stockton, in an effort to deal with problems created by prostitution and drug dealing in residential neighborhoods, adopted a local ordinance which provided for the forfeiture of “any vehicle used to solicit an act of prostitution, or to acquire or attempt to acquire any controlled substance.” The ordinance declared such vehicles a public nuisance and authorized their seizure and, after a hearing, sale of the vehicles. Numerous other cities have also adopted similar ordinances in an effort to crack down on such criminal behavior.

Unfortunately, the Supreme Court ruled against such local laws based on the constitutional premise that state law preempts local legislation if the local ordinance is in conflict with state law. A conflict exists if the local ordinance “duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.”

The Supreme Court noted that the California Uniform Controlled Substances Act (UCSA), H&S sections 11000 et seq., occupies the field of penalizing crimes involving controlled substances, therefore, impliedly preempting the city’s forfeiture ordinance.

Additionally, with regard to the vehicles used to solicit prostitution, the state Legislature expressly preempted that field of law through the state Vehicle Code. Veh. Code section 21 precludes local regulations absent explicit legislative authorization, and V.C. section 22659.5, already sets up a pilot program allowing local entities to declare such vehicles a public nuisance.

Therefore, the ordinances conflict with state law, said the Court, because (1) the conduct addressed is exclusively within the purview of state law, and (2) the local ordinances subject persons “to penalties in excess of those prescribed by the Legislature.”

Stockton also argued that since it is a chartered, rather than a general law, city is permitted to adopt laws “so long as the subject matter constitutes a ‘municipal affair,’ rather than a ‘statewide concern’.” However, the Court ruled that “the illicit commercial activities – prostitution and trafficking in controlled substances – that are the focus of the City’s vehicle forfeiture ordinance 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.”

How This Effects Your Agency

Obviously, if your city or county has adopted ordinances of this nature they can no longer be utilized nor enforced.

However, it would seem logical, and relatively easy, for cities and counties to petition the state Legislature to amend the existing Penal and Vehicle Codes to add language which would allow the seizure and forfeiture of vehicles under these circumstances .

The proven benefit of such laws would seem to obviate any arguments opposing the addition of such authority to our current state laws and would then be in complete compliance with the Supreme Court’s ruling.

It is somewhat ironic that the preemption issue raised in this case – that state law “trumps” local law – is exactly the same argument raised by law enforcement regarding California’s medical marijuana law – that federal law “trumps” state law. As counsel to CSSA, CPCA and CPOA, we have argued, to both federal and state courts, that the federal law has preempted the field when it comes to regulating the use, transfer and/or possession of marijuana. Therefore, peace officers should not be ordered to return marijuana just because the state law says it’s OK for a particular person to possess it for medical reasons, when that is contrary to the federal laws which occupy the field.

In both cases it is up to the “superior” legal body – Congress regarding medical marijuana and the state Legislature regarding vehicle seizures – to effect a change. Congress has steadfastly refused to do so, leaving local law enforcement in an untenable situation. Hopefully our state Legislature will be more aware of society’s needs, in the area involving vehicle seizures, and implement such a needed change.

As always, it is imperative that you receive advice and guidance from your agency’s designated legal counsel. If you wish to discuss this matter in greater detail, feel free to contact me at 714 – 446-1400 or by e-mail at mjm@jones-mayer.com.