ACLU Studies Fight of ‘Zero Tolerance’

An American Civil Liberties Union spokesman said Tuesday that the organization is discussing whether to mount a national challenge to the “zero-tolerance” rule, under which 36 cars were seized in Santa Ana over the weekend.

“There should be zero tolerance to the zero-tolerance rule,” said Joel Maliniak a spokesman for the ACLU of Southern California.

The weekend sweep--by the Santa Ana police, the U.S. attorney’s office, the U.S. Drug Enforcement Administration and the U.S. Marshal’s Service--was intended to apprehend drug buyers and seize their vehicles under a federal statute that allows the government to impound vehicles transporting any amount of illegal drugs.

The ACLU has been reviewing similar cases in New York, Detroit and Los Angeles and cases involving the seizure of yachts off the U.S. coast.

Major Quantities Seized

The ACLU’s problem, Maliniak said, is that the law has many applications--only some of which the ACLU may consider excessive and unconstitutional.

In some instances, the law has been used in conjunction with the seizure of major quantities of drugs.

But in cases like the Santa Ana sweep, “the punishment does not fit the crime,” Maliniak said. “While a person’s guilt or innocence is being established (on the drug charges), the person is being punished by having his car impounded.”

He also said the ACLU believes the government should focus more on buyers and sellers of major quantities of drugs, not those in transactions involving $10 worth of marijuana.

Police last weekend confiscated 303.5 grams (about 11 ounces) of marijuana and 22.6 grams (less than an ounce) of cocaine.

“It’s a modern-day bounty hunt,” Maliniak said. “Government agencies are going out and using a legal rule and stretching it beyond its limits to the point where it’s ludicrous.”

Demonstrate Seriousness

But local and federal officials said enforcing the zero-tolerance policy is one of the ways the government can demonstrate seriousness about drugs.

“The message to the public for the last 15 years has been, ‘It’s OK to use drugs, just don’t sell them,’ ” said U.S. Atty. Peter K. Nunez in San Diego, who started a pilot program in 1986 by enforcing a zero-tolerance policy at the U.S. port of entry to seize vehicles of those smuggling drugs across the Mexican border.

The federal government has been looking for tougher ways to increase the prosecution of drug buyers, Nunez said, with one way being the enforcement of a federal statute that has been on the books since the early 1970s.

The federal statute states that any vehicle used to transport any amount of illegal drugs may be seized, “including aircraft, vehicles, or vessels which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment” of drugs.

“If you look at zero tolerance,” Nunez said, “it means we have no tolerance. Zero. Zippo. . . . There is no philosophical middle ground, just as you cannot be a little bit pregnant. We as a society have to change our collective attitude on drugs.”

As for the 36 owners whose cars were seized in Santa Ana this weekend, their chances of successfully challenging the seizure are slim, officials said.

‘It’s a Pretty Simple Case’

“Assuming the owner was present, it’s a pretty simple case,” Nunez said.

The car seizure and drug possession charges are two separate matters. The car seizure is handled administratively by the DEA and the drug charges are brought by the Orange County district attorney’s office.

Even if the drug charges are dropped or the accused are acquitted, they still must either forfeit their cars or take the matter to court.

Car owners may file civil complaints and the cases will be heard in federal court. But the burden of proof is on the car owners, who must show that they did not know their cars were being used for the transportation of drugs.

ACLU lawyer Rebecca A. Jurado said previous court cases “are not real good for the people who had property seized based on somebody else’s actions.”

The courts have ruled that the transportation of “any quantity of drugs, however minute, is a violation” of the federal statute. Jurado said.