Arizona Civil Asset Forfeiture Laws Unconstitutional, Says ACLU Lawsuit

The Arizona American Civil Liberties Union filed a lawsuit in a U.S. District Court this morning alleging that Arizona’s Civil Asset Forfeiture laws are unconstitutional. These statutes give law enforcement agencies the power to seize personal property if they suspect it was used in criminal activity, and then either to keep it or sell it for profit.

In Arizona, the money made from these seizures goes directly into law enforcement coffers, and critics like the ACLU say these laws “have created a lucrative system in which police and prosecutors are heavily incentivized to seize and forfeit property.” In essence, the group argues, these rules allow “law enforcement [agencies to] supplement their budgets without any legislative oversight.”

“Civil forfeiture laws represent one of the most serious assaults on private property rights in the nation today,” stated a 2010 study of the practice conducted by the public policy research organization, the CATO Institute.

Since “the overriding goal for law enforcement officials — both prosecutors and police — should be fair and impartial administration of justice… perhaps the most troubling aspect of modern civil forfeiture laws is the profit incentive at their core,” the report said. The CATO report gave Arizona’s civil asset forfeiture laws a D- grade, noting that the “laws are in serious need of reform.”

In other words, with civil forfeiture, those who have had their property seized are essentially guilty until proven innocent.

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The ACLU is hoping to get those changes made by filing suit on behalf of Sun Tan Valley resident Rhonda Cox, whose Fifth and Fourteenth Amendment rights, the group says, were violated by the civil asset forfeiture laws.

In August 2013, Cox let her 20-year-old son borrow the family truck, which she had purchased a few months earlier for $6,000. She was contacted the following morning by the Pinal County Sheriff’s Office and told that her son was suspected of a stealing a car hood and installing it on the truck.

Cox went to the scene of the alleged crime and learned that her son had been arrested. “The only person left on the scene was one deputy who was sitting in his car guarding Rhonda’s truck,” states the lawsuit.

She informed the deputy that the truck was hers, and asked when she would get it back. “The deputy curtly told Rhonda that she would never be getting her truck back” because the sheriff’s office had “decided to seize the Truck along with the stolen items in it.”

When she told the deputy “that she had nothing to do with the alleged crime…he simply said, ‘too bad.’”

Under Arizona forfeiture laws, any and all money made from seizing assets goes to the local county attorney’s office or sheriff’s office – and according to CATO can be used “to pay the direct salaries of personnel” — meaning the deputies who seized Cox’s truck had every incentive to keep it.

“It did not matter to the deputies that Rhonda was an innocent owner entitled to get her truck back,” the ACLU writes in its complaint.

As is explained in the CATO report, “many jurisdictions provide an ‘innocent-owner’ defense that allows owners to get their property back if they had no idea it was involved in a crime. However, in most places, owners bear the burden of establishing their innocence. (Unlike criminal asset forfeiture laws, which require the government to prove beyond a reasonable doubt that the involved individual is guilty of criminal misconduct, law enforcement can seize property under civil forfeiture laws even if there are no charges filed against the property owner.)

In other words, with civil forfeiture, those who have had their property seized are essentially guilty until proven innocent.

Cox, who worked in sales for many years before returning to school to become a paralegal, couldn’t afford a lawyer and attempted to fight the seizure on her own. She spent months trying to get her truck back, but finally gave up after learning she would be required to pay a $304 court fee just to file the complaint, and that she’d be responsible for covering the state’s attorney fees and investigation costs if she lost in court. (Conversely, as is pointed out in the ACLU lawsuit, if she won in court, the state would not be responsible for paying her legal fees.)

In other words, with civil forfeiture, those who have had their property seized are essentially guilty until proven innocent.

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“The lay person does not stand a chance over [someone] who does this everyday,” Cox wrote in a letter to Deputy Pinal County Attorney Craig Cameron nine months into her fight to get her truck back. (Cameron, along with the elected Pinal County Attorney, Lando Voyles, are two of the defendants named in the ACLU case.)

Cox filed a motion to withdraw her claim on April 14, 2013 “based on the likelihood of the state winning the case and the fear of additional financial loss,” i.e., having to pay the state’s attorney’s fees.

Thus the crux of the ACLU case is that these laws “twice place an unconstitutional burden on Rhonda’s rights under the First Amendment to ‘petition the government for redress of grievances…Through these and other unconstitutional means, the forfeiture laws have created a system in which few people like Rhonda can afford to take the risk of defending their property. And defendants have profited, and continue to profit, wildly through this system.”

As stated in the lawsuit, a 2014 report by the Arizona Criminal Justice Commission found that Arizona law enforcement agencies and state/county attorney’s offices had almost $85 million in their bank accounts from forfeitures.

Forfeiture laws, the ACLU and other critics argue, weren’t always nefarious, and have been perverted from their original purpose. They were designed “as a way to cripple large-scale criminal enterprises by diverting their resources,” says the ACLU, “but today, aided by deeply flawed federal and state laws, many police departments use forfeiture to benefit their bottom lines, making seizures motivated by profit rather than crime-fighting.”

American forfeiture statues have their origin in 17th-century British maritime law, which gave the government the right to seize boats and cargo if laws were violated, but everything changed “during the early 1980s as government at all levels stepped up the war on drugs, and Congress and the states created new incentives for the use and arguably the abuse of civil forfeiture,” states the 2010 CATO report on the topic.

A 2014 report by the Arizona Criminal Justice Commission found that Arizona law enforcement agencies and state/county attorney’s offices had almost $85 million in their bank accounts from forfeitures.

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“For most of American history, the proceeds from forfeitures went not to the law enforcement agencies responsible for the seizures but to the government’s general fund. However, in 1984, Congress amended portions of the Comprehensive Drug Abuse and Prevention Act of 1970 to create the Assets Forfeiture Fund, into which the Attorney General was to deposit all net forfeiture proceeds for use by the Department of Justice and other federal law enforcement agencies.

“Subsequent amendments dramatically expanded what law enforcement could do with these funds, including allowing their use for expenses such as purchasing vehicles and overtime pay.

“In short, after the 1984 amendments, federal agencies were able to retain and spend forfeiture proceeds—subject only to very loose restrictions—giving them a direct financial stake in generating forfeiture funds. With these changes, the modern era of policing and prosecuting for profit had begun.”

The ACLU filed the lawsuit this morning because “on top of authorizing the seizure of her truck even though she did nothing wrong, the forfeiture laws then [punished] Rhonda for standing up for herself and her property in court.” These laws are unconstitutional, and “ultimately worked against Rhonda at every turn.”

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Miriam is a staff writer at Phoenix New Times.
Contact: Miriam Wasser

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