"The Los Angeles City Council gave initial approval Friday to a law that would allow police to seize and sell vehicles used by motorists while soliciting prostitutes."

"The ordinance, which was given unanimous council approval but requires a second vote next Tuesday, was endorsed by Police Chief William J. Bratton as a way to address a problem plaguing some Los Angeles neighborhoods."

"Bratton said a similar law proved effective in New York City when he headed the department there. "It's intended to be another tool to discourage people from using their cars to solicit prostitution," Bratton said after the vote. LAPD officials said the department has primarily targeted prostitutes and pimps for enforcement action in the past. Friday's vote represents the city's most ambitious effort to go after their customers."

Police intend to use the law in sting operations in which "female police officers pose as prostitutes and tape solicitations before making arrests. Proceeds from car sales would be divided between the Police Department and the city attorney's office."

The ACLU charges that the law is unconsitutional. But a similar ordinance in Oakland was upheld by the California Supreme Court.

In Bennis v. Michigan, 116 S. CT. 994 (1996), the Supreme Court upheld the seizure and forfeiture of a wife's interest in a car she owned jointly with her husband after her husband used the car without her knowledge to patronize a prostitute. The car was declared a "public nusiance" under Michigan law, which did not have an innocent owner defense.

The Supreme Court ruled neither 14th Amendment's due process nor the unjust takings clause of the 5th Amendment was violated by the law's failure to include a defense for innocent owners--an innocent owner being one who could establish that they had no knowledge or reason to know the vehicle would be used illegally. Justice Rehnquist wrote the majority opinion. Justices O’Connor, Scalia, Thomas and Ginsburg joined in the result.

Justice Ginsberg and Thomas wrote separate opinions, agreeing with the result. Ginsberg said:

“Michigan has decided to deter Johns from using cars they own (or co-own) to contribute to neighborhood blight, and that abatement endeavor hardly warrants this Court’s approbation”.

Justice Thomas said:

“This case is ultimately a reminder that the Federal Constitution does not prohibit everything that is intensely undesirable” ....

“The limits on what property can be forfeited as a result of what wrongdoing- for example, what it means to ‘use’ property in crime for purposes of forfeiture law- are not clear to me”.

Justice Stevens, joined by Justices Souter and Breyer, dissented:

“The principal use of the car in this case was not to provide a site for petitioner’s husband to carry out forbidden trysts. Indeed, there is no evidence in the record that the car had ever previously been used for a similar purpose. An isolated misuse of a stationary vehicle should not justify the forfeiture of an innocent owner’s property on the theory that it constituted an instrumentality of the crime”.

“Apart from the lack of a sufficient nexus between petitioner’s car and the offense her husband committed, I would reverse because petitioner is entirely without responsibility for that act. Fundamental fairness prohibits the punishment of innocent people.”

Justice Kennedy also dissented, arguing:

“This forfeiture cannot meet the requirements of due process. Nothing in the rationale of the Michigan Supreme Court indicates that the forfeiture turned on the negligence or complicity of petitioner, or a presumption thereof, and nothing supports the suggestion that the value of her co-ownership is so insignificant as to be beneath the law’s protection.”

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The moral of the story is that if you live in a county or city that has a public nuisance abatement law, check and see if it provides a defense for an innocent owner. If not, contact your legislator or city councilperson and ask them to draft remedial legislation.