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Asset Forfeiture: Austin Police Use of Seized Funds Probed

Austin, Texas, Police Chief Art Acevedo announced August 9 that a criminal inquiry is underway into how Austin police spent money seized in the past five years and whether they violated rules governing how such funds are to be used. Acevedo, who has been on the job less than a month, said he wants to look closely at several payments made from the millions of dollars seized by the department during that period.

The probe comes after the Austin American-Statesman reviewed thousands of transactions obtained under Texas open public records laws. The review found that much of the money was spent on vehicle maintenance, training, and equipment purchases, but not all of it. Other spending included:

  • $13,000 in college tuition for a police commander.
  • $12,025 in October 2002 for an awards banquet.
  • $3,314 for clothing for the department's running team in November 2005.
  • $1,895 in May 2005 for a "race clock."
  • $625 in October 2001 for coffee mugs.

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Austin police -- busted?
A memo prepared for Chief Acevedo found more problems. It said the department had used seized funds in 2005 and 2006 to balance its budget. In fact, the department's seized funds account began running a negative balance in June because the money had been spent to balance the 2006 budget.

Both the state of Texas and the federal Justice Department have rules regarding how seized funds may be spent. The feds, for instance, bar funds from being used to pay salaries or supplant existing funding or from spending such funds before they are actually received. Texas law says that money can be used for salaries, overtime, officer training and investigative equipment and supplies. Other items may be bought with state funds only if used by officers in "direct law enforcement duties."

Acevedo said he had hoped to reveal the results of an internal investigation last week, but that was derailed when it morphed into a criminal investigation.

Feature: Yellow Journalism -- San Francisco Exchange Programs Scored Over Dirty Needles

A series of sensationalistic articles in the San Francisco Chronicle over the past two weeks highlighted the problem of discarded needles near one of the city's needle exchange programs. The series appears -- on the surface -- to have prodded city officials to act on the problem. More accurately, it informed the public of planning that had been going on behind the scenes, though without informing readers of that. While the articles posed as muckraking, civic-minded journalism, they smeared needle exchange workers -- they failed, most importantly, to ask the most basic questions needed to actually determine the programs' impact on needle discarding -- and unnecessarily contributed to public fears about the programs.

The Chronicle series began Sunday July 29 with "The Situation at Golden Gate Park; Sunday in the Park -- With Needles," where the paper reported that the park was "littered" with discarded syringes. The reporting made it seem as if the discarded syringes were the fault of needle exchange programs:

"They tell us he was steaming, but San Francisco Mayor Gavin Newsom shouldn't have been too surprised when The Chronicle reported that Golden Gate Park was littered with used drug syringes.

"After all, his own Public Health Department spent $800,000 last year to help hand out some 2 million syringes to drug users under the city's needle exchange program -- sometimes 20 at a time.

"Although Health Department officials say 2 million needles were returned, the fact is they don't count them and can only estimate how many are coming back.

"And from the looks of things, a lot of them aren't."

That same article was also shocked to report that drug users can actually buy needles without a prescription:

"Under legislation passed in 2005 by the same Board of Supervisors whose members now decry the needle problem, anyone over 18 can walk into a Walgreens or Rite Aid and buy as many as 10 needles -- no questions asked."

http://stopthedrugwar.org/files/syringes.jpg
syringes
Like needle exchanges, non-prescription syringe access is a harm reduction measure designed to save lives and improve the public health by reducing the spread of disease through making needle access easier. Its beneficial impact, however, is blunted by a California statute defining syringe possession as a violation of the paraphernalia law. Hence, users anxious to avoid trouble with law enforcement may be rendered more anxious to get rid of their needles once done with them, and less likely to save them long enough to take them back to a program.

In that article and a same-day companion piece, "Golden Gate Park sweep -- can city make it stick? 'March of junkies': Haight's residents fume over needles," the Chronicle described finding needles in Golden Gate Park and interviewed neighbors upset with finding discarded syringes in the area. It made for compelling reading, but left several critical questions unanswered:

  • How many needles were being discarded in the park before there were needle exchange programs?
  • How many of the needles found by the authors of the neighborhood residents they quoted came from the needle exchange program?
  • What is the risk of HIV or Hep C infection from being pricked with a discarded needle? What was it before there were needle exchange programs?
  • How many needles not returned to the program are actually being unsafely discarded?
  • Overall, how significant is the threat to public safety from discarded syringes, and how does it compare with the threat from pre-needle exchange days?

If advocates and researchers are right, the answers to those questions don't support the premise of the Chronicle stories. "Nobody wants dirty syringes lying around," said Hilary McQuie, Oakland-based Western Director for the Harm Reduction Coalition. "But there were syringes everywhere in San Francisco before we started needle exchanges here in 1988. There is no recognition [in the Chronicle story] that there was a problem with discarded syringes before needle exchange came around, or that needle exchanges help reduce the problem."

The Chronicle also seemed to go out of its way to paint one program, the Homeless Youth Alliance, and its director, Mary Howe, in an unflattering light:

"Finding the needle exchange in the Haight isn't easy. Walk west on Haight Street, take a right at Cole, and turn in the first doorway. There's no identification, just a blue sign that says, 'entrance.'

"Walk up the hall, which smells of urine, and then knock on the scratched and battered wooden door. After two or three tries, someone might open the door a crack to see what you want.

"Welcome to a city drug needle exchange and HIV prevention facility.

"When then-Mayor Frank Jordan signed legislation endorsing needle exchanges in 1992, it was a high-minded, civically progressive program to slow the spread of HIV and hepatitis C. Drug users would get a needle, use it, then return it for a clean one. That's still the idea -- and it is a good one -- but somewhere along the line the concept went low-rent.

"Today the Haight facility looks more like a hole in the wall. The neighbors, many of whom say they have never been told what's going on up the street, find syringes in their gardens. And the original idea -- a one-for-one exchange -- is largely ignored.

"The exchange is run by the Homeless Youth Alliance, which gets a yearly budget of $275,000 from the city Department of Public Health. As the alliance's program director, Mary Howe, admits, they make no more than a rough count of the incoming needles. If someone says he returned 40, they hand over 40 new ones. And, if he doesn't have any, they give him 20 as a startup stash.

"'The point for a needle exchange is not to get every needle back,' says Howe. 'The majority of users dispose of needles in a respectful manner.'

"And those who don't?

"'That's not my responsibility,' Howe said. 'I can't hold everyone's hand and make everyone put them in a bio bucket. If someone has a liquor store, and they sell liquor to someone who gets into an accident, is it the store's fault?'"

"The Chronicle totally attacked Mary Howe," McQuie complained. "She's one of the few people who has a good relationship with the homeless users in Golden Gate Park, and the Chronicle didn't mention that her staff does regular clean-ups [collections of discarded syringes] there."

"That's right, said Peter Davidson, board chairman for the Homeless Youth Alliance. "We go out there monthly and clean up dirty needles," he said. "It's a large park, though, and I have to wonder why we are blamed for every needle in it. Picking on a small, poorly-funded needle exchange program doesn't seem particularly productive," he said.

"We're a little bit frustrated with the Chronicle coverage," said Davidson, "but we hope this whole kerfluffle will cause some movement."

Of course, no one wants people getting stuck with discarded needles, but some research can help to put that problem in perspective too. Infections from needle sticks are quite rare outside medical facilities, according to Dr. Robert Heimer, a professor in the Division of Epidemiology of Microbial Diseases at Yale University and an expert on HIV survival in syringes. "While HIV will survive for weeks inside a syringe, needle sticks are not likely to transmit the virus since virus on the surface of the needle, which would be introduced into the body of the person being pricked, loses viability quickly upon drying. Supporting this are the data from hospital needle stick transmission, which were strongly associated with fresh blood," he said.

A 1998 review of the literature on needle stick infections agreed. It found no HIV infections contracted via needle sticks among garbage disposal workers in one study reviewed. Other studies found low numbers (less than 15) cases of hepatitis infections contracted through needle sticks.

In the third article (so far) in the series, "Needles talk of town; SF officials promise system of drop boxes," the Chronicle patted itself on the back for prompting the city to act with its "exposé" of the dirty needle problem:

"City officials and nonprofit agency leaders, responding to an outcry over used syringes littering parks, promise to reform San Francisco's needle-exchange program -- including locked, 24-hour syringe drop boxes and technologically advanced syringes."

Indeed, both city officials and needle exchange program heads were quoted as saying they would be acting soon to install drop boxes where dirty needles could be dropped off. San Francisco currently doesn't have any, which probably goes a long way toward explaining why the city's return rate is only around 70% instead of the 90% reported in some cities that do have drop boxes. But it is not that the city and the exchanges suddenly woke up because of the Chronicle's reporting. According to insiders, planning for drop boxes has been ongoing, and the first ones will appear shortly. What the Chronicle's reporting really did was goose city hall and the exchanges to let the public know what was already underway.

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popular needle exchange logo
"Mary has been meeting with the public health department, the AIDS Foundation, and the police on disposal boxes for the last year and a half," said Davidson. "Everyone agrees it's a good idea. She's been shopping a written proposal around, but when it came to needles in Golden Gate Park, Parks and Recreation didn't want to get involved."

"We've been talking with the city public health department for awhile about disposal boxes, and I think this series and all the uproar it has aroused will make it happen," said McQuie. "That would be a good public relations move, but people don't want to carry their syringes around because of our paraphernalia law here in California." In the face of the assault on the NEPs in San Francisco, McQuie went on the offensive. "What we really need is to change the needle law so people don't feel like they have to get rid of them. We need syringe exchange machines like soda machines, where you put one in and take one out. And we need safe injection sites," she said.

Heimer also had some observations and suggestions about reducing the number of dirty needles strewn about in public. "Our studies comparing Springfield, Massachusetts, where there is no legal access to syringes, to New Haven and Hartford, where there is, found far more unsafe discarding in Springfield (44%) than in Connecticut cities (13.5%)," he pointed out. His unspoken conclusion was obvious: remove restrictions to needle access if you want to lower rates of unsafe discarding.

"We need publicly accessible drop boxes," Heimer suggested, "along with training injectors to use proper containers, training police to not harass people who carry syringes (then people won't have to chuck their rigs when approached by police), and expanding syringe exchange hours and, counter-intuitively, liberalizing exchange policies," he said. "We found that syringe return rates in three US cities -- Oakland, Chicago, and Hartford -- were highest (nearly 90%) in the city with the most liberal policy (Chicago) and lowest (only 50%) in the city with the most restrictive policy (Hartford).

But such fine points apparently did not interest the self-styled crusaders at the Chronicle. While the newspaper may have done a public service by reporting on the discarded needle problem, the way it did so was a disservice to the hard-working, dedicated people who run these programs for the public health. One would think the citizens of San Francisco deserve better than shabby, sensationalized reporting when it comes to critical public health issues. We only hope that the Chronicle's botched job leads to advances, not setbacks, for harm reduction and needle access in California.

Racial Profiling: Kansas Police Agencies Honor Reporting Law Mostly in the Breach

Only one out of three Kansas law enforcement agencies are reporting racial profiling information to the state attorney general's office, the Kansas City Star reported Saturday. This despite a law signed two years ago by Gov. Kathleen Sebelius (D) requiring them to do so in a bid to end police stops based solely on skin color.

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enter at peril of profiling
The law requires departments to make annual reports listing complaints of racial profiling, but it has no enforcement mechanism. "We don't have any enforcement ability" over those agencies that don't report, said Ashley Anstaett, spokeswoman for Kansas Attorney General Paul Morrison. "There's no penalty if they don't report."

"There's no hammer behind the law. No teeth in it," said state Sen. David Haley (D-Kansas City), who was an original sponsor of the bill. "It became the proverbial toothless paper tiger."

So toothless that 284 of Kansas' 431 law enforcement entities -- that's 66% -- didn't bother to comply. It doesn't have to be that way. Next door in Missouri, there is a 97% compliance rate, not least because departments that don't comply stand to lose funds. In 2005, the Missouri Department of Public Safety withheld more than $7,000 from 17 non-complying agencies.

Nor is that the only problem with the Kansas racial profiling law. It also called for a 15-member Governor's Task Force on Racial Profiling, which was supposed to quantify the problem and make recommendations for abolishing the practice. But some of the task force's members apparently can't be bothered to actually show up for monthly meetings, leaving it without a quorum at its last one.

Among the critics is the task force's co-chairman. "Up until this point there's been a lot of dialogue, but the truth is, people are looking for action," said the Rev. Allen Smith of Salina. "We're expecting some real results," said Smith, pastor of St. John's Missionary Baptist Church in Salina. "I don't think the issue is going away."

Sen. Donald Betts (D-Wichita), another sponsor of the legislation, said the task force's role was even more critical because of the lack of teeth in the data collection part of the law. He said he would call for the replacement of task force members if something doesn't happen. "It does not take forever and a day to come up with recommendations of data collection," he said. "It's time to stop talking about it and time to be about it. It's time to move… If the task force doesn't do something, I intend to hold the task force accountable."

Racial profiling was identified as a problem in Kansas after a study released in 2003 showed that state troopers were three times as likely to stop black and Hispanic motorists than white ones. Police in some Kansas cities were also found to be twice as likely to stop black or brown motorists.

The 2005 bill was supposed to address that problem, but without the cooperation of law enforcement it will not. As for the task force, it has until 2009 to complete its work. But it may not get that long, especially if the police don't step up and start handing in their numbers.

City firm on pot lawsuit

Location: 
Claremont, CA
United States
Publication/Source: 
Inland Valley Daily Bulletin (CA)
URL: 
http://www.dailybulletin.com/news/ci_6553044

Medical pot user challenging city

Location: 
Merced, CA
United States
Publication/Source: 
Merced Sun-Star (CA)
URL: 
http://www.mercedsunstar.com/local/story/13858427p-14429878c.html

Search and Seizure: California Supreme Court Just Says No to Seizures of Drug Buyers' Cars

In a closely divided 4-3 opinion, the California Supreme Court has ruled that local governments cannot seize the vehicles of people arrested on suspicion of buying drugs or using prostitutes, the two most common offenses targeted by local crime-fighting forfeiture ordinances in a number of California cities. The ordinances aim to reduce drug selling and street prostitution by seizing the cars of customers and thus deterring future customers.

The ruling came in O'Connell v. City of Stockton, where a local woman, Kelly O'Connell, challenged the city's "Seizure and Forfeiture of Nuisance Vehicles" ordinance. In a legal argument that was more about state versus municipal power than drug offenses or selling sex, the court held that only the state can set punishments for offenses under the state criminal code -- not municipalities.

Nor, the court held, can cities mete out punishments for state law violations that are harsher than the state laws themselves. In some California cases, drivers seeking to buy marijuana -- small-time pot possession is a $100 ticket in California -- have had their vehicles seized.

The punishment of drug and prostitution offenses "are matters of statewide concern that our Legislature has comprehensively addressed... leaving no room for further regulations at the local level," the court ruled.

While it was Stockton's ordinance that was challenged, the court's decision invalidates similar ordinances that began with Oakland, the first California city to adopt forfeiture laws in 1998. Since then, Los Angeles, San Diego, Sacramento, San Bernardino, Riverside, Inglewood and Ontario, among others, have enacted similar ordinances.

After the decision was announced, attorney Mark Clausen, who represented O'Connell, told the Los Angeles Times that "several thousand" vehicles had been seized throughout the state, with most drivers getting their cars back after paying "impound fees" of up to $2,000.

"These ordinances were just a public relations stunt," Clausen said.

But prosecutors and law enforcement officials told the Times seizing vehicles was a valuable law enforcement tactic. "Obviously, this is a very valuable tool for us," said Los Angeles Police Department Cmdr. Harlan Ward. "It allows us to take care of community issues. It's a tool we use to work on the quality-of-life issues that affect neighborhoods."

The effect of the decision will be far-reaching, said John Lovell, counsel for the California Police Chiefs Association. "Forfeiture no longer appears to be an option," he said.

Search and Seizure: Arizona Supreme Court Limits Vehicle Searches

The Arizona Supreme Court ruled late last month that police cannot routinely search the vehicles of people they arrest. In a 3-2 decision in State v. Gant, the court held that the warrantless search of Rodney Gant's vehicle after he was arrested, handcuffed, and sitting in the back seat of a police car went beyond an allowable search incident to arrest and was "not justifiable."

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police searching accused drug traffickers' car
Gant, from Tucson, was convicted on drug charges after police waiting for him as part of a drug investigation arrested him on a warrant for driving on a suspended license when he drove up to a targeted address. Police knew he had the pre-existing warrant because they had checked up on him during an earlier encounter at the same address. When Gant drove up and got out of his car, police called him over and arrested and handcuffed him. They then searched the vehicle and found the drugs that led to his conviction. The court overturned the conviction, calling the search a violation of the Fourth Amendment.

The legal argument centered around whether the facts in this case were consistent with a search incident to arrest. US courts have recognized searches incident to arrest as one of the few areas where the Fourth Amendment requirement of probable cause or a search warrant not does apply, citing officer safety and the need to preserve evidence.

The Arizona Supreme Court held that the search of Gant's vehicle after he was already under arrest and handcuffed for a traffic warrant was not a search incident to arrest. "When the justifications [for a search incident to arrest] no longer exist because the scene is secure and the arrestee is handcuffed, secured in the back of a patrol car, and under the supervision of an officer, the warrantless search of the arrestee's car cannot be justified as necessary to protect the officers at the scene or prevent the destruction of evidence," wrote Justice Rebecca Berch for the majority.

Arizona law enforcement was not happy about the ruling, and some agencies suggested they would find ways to skirt it. Police departments across the state, working with the Arizona Association of Chiefs of Police and the Arizona Law Enforcement Legal Advisors' Association, filed briefs urging the court to uphold the conviction and hinting they would adopt different arrest procedures -- perhaps not handcuffing suspects until after a vehicle search -- to be able to continue the practice.

Justice Berch addressed that implied threat in her opinion. "We presume that police officers will exercise proper judgment in their contacts with arrestees and will not engage in conduct which creates unnecessary risks to their safety or public safety in order to circumvent the Fourth Amendment's warrant requirements," she wrote.

Council secretly snuffs pot club

Location: 
Hayward, CA
United States
Publication/Source: 
The Oakland Tribune (CA)
URL: 
http://www.insidebayarea.com/oaklandtribune/localnews/ci_6534380

Plan to limit new medical marijuana dispensaries OK'd by council

Location: 
Los Angeles, CA
United States
Publication/Source: 
Los Angeles Daily News (CA)
URL: 
http://www.dailynews.com/news/ci_6521804

Deputies employ new tactic to weed out illegal pot growers

Location: 
CA
United States
Publication/Source: 
Santa Cruz Sentinel (CA)
URL: 
http://www.santacruzsentinel.com/archive/2007/July/29/local/stories/02local.htm

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