An ACLU lawsuit recently shined a bright spotlight on Arizona’s draconian asset forfeiture laws and has sparked calls for reform at the state level. But even the best efforts need to be wary of loopholes that allow forfeiture under federal programs.
The lawsuit stems from a case involving a seized pickup truck belonging to Rhonda Cox. She frequently let her son borrow the vehicle. In 2013, police arrested Chris and charged him with stealing accessories that he had attached to the truck.
As Forbes tells the story:
“Chris called his mother and she quickly went to the scene, where she found one deputy remaining, guarding her truck. She explained that it belonged to her and asked how she could get it back. The deputy smugly replied that she would never be getting it back. When Rhonda protested that she had nothing to do with the alleged crime, the deputy merely said, ‘Too bad.’”
The Pinal County Sheriff’s Office initiated forfeiture proceedings against the truck. Yes – you read that right. In civil asset forfeiture proceedings the state actually sues the property.
Cox claims when she filed paperwork to get the truck back, a deputy county attorney told her she would have to pay the county’s court cost if she lost. Knowing she couldn’t pay if she lost, she withdrew the paperwork and the county took her truck.
The ACLU later filed suit on Cox’s behalf, arguing Arizona’s asset forfeiture laws are unconstitutional. According to the lawsuit, “Rhonda was caught in a Kafkaesque predicament where, bizarrely, she bore the burden of proving that she was entitled to get the Truck back.”
While I question the wisdom of calling on the federal courts to police Arizona state law, the ACLU suit certainly proved positive in a couple of ways. It made people much more aware of an all-to-common practice across the U.S., and it created an appetite for reform in the Grand Canyon State.
According to the Institute of Justice, Arizona currently has some of the worst asset forfeiture laws in the country. The state policy earned a D- rating from the IJ.
“Arizona’s civil asset forfeiture laws are in need of serious reform. In Arizona, the government may forfeit your property by showing by a preponderance of the evidence that the property is subject to forfeiture. Unfortunately, a property owner claiming an innocent owner exemption to the forfeiture laws—because, for example, he did not know his property was being used illegally—bears the burden of proving his innocence. In Arizona, law enforcement personnel have a strong incentive to seize as much property as they can since they receive 100 percent of the funds raised through civil forfeitures. Even more troublesome, Arizona law enforcement can use forfeiture revenue to pay the direct salaries of personnel.”
Sources close to the Tenth Amendment Center indicate state legislators have already started drafting asset forfeiture reform legislation for the 2016 session. If they follow the lead of other states, they will require a criminal conviction prior to initiating forfeiture proceedings and limit law enforcement agencies’ ability to directly benefit from forfeiture proceeds.
Most importantly, any reform needs to include provisions that stop state and local law enforcement from turning cases over to the federal government, thereby circumventing any restrictions placed on asset forfeiture.
This very scenario plays out frequently in states with strong asset forfeiture laws like California. Police simply avoid civil liberty protections and limits on the revenue they can collect by turning cases involving seized assets over to the feds. In return, state and local agencies get 80 percent of the proceeds back through the Federal Equitable Sharing Program.
As the Tenth Amendment Center previously reported, the federal government has inserted itself into the California’s asset forfeiture debate. The feds clearly want the policy to continue.
We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its deplorable “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.
Arizona legislators should be aware of this loophole and include language in their reform bill to close it.