PHOENIX – A new challenge has been mounted contesting the legality of Arizona laws that allow police and prosecutors to seize property without proving to a judge it was used for a criminal purpose.
The Institute for Justice is asking a Navajo County Superior Court judge to declare the state’s civil forfeiture statutes unconstitutional. Attorney Paul Avelar contends the laws provide an illegal profit motive for government agencies to take someone else’s property without good reason.
Avelar said the law is also flawed in that it forces someone who’s property has been seized to have to spend money just to get into court to try to get it back. Worse yet, he said the statute is worded in a way to chill any such challenge by potentially making the property owner liable for the government’s legal fees.
This is the second such challenge to the laws.
The American Civil Liberties Union filed a similar claim last year in federal court, contesting the actions of Pinal County Attorney Lando Voyles and Sheriff Paul Babeu. A judge has not yet ruled on the case.
Rulings against the counties in either case could portend the end of what has been a controversial practice that prosecutors have defended as a key weapon in their ability to fight crime.
This case involves Terry and and Maria “Ria” Platt, an elderly Washington couple who loaned their vehicle earlier this year to their adult son, Shea, so he cold drive to Florida for a vacation.
Attorney Paul Avelar said Shea was stopped on Interstate 40 near Holbrook ostensibly because the window tinting was too dark. But after issuing a repair ticket, the officer got consent to use a drug-sniffing dog. A searched turned up a “personal use” quantity of marijuana and some cash.
While Shea was initially arrested, Avelar said there are no pending charges against him. But that did not stop Navajo County prosecutors from moving to seize the vehicle owned by his parents.
Avelar said prosecutors illegally ignored the couple’s legal objections to taking the vehicle and their claims they had no knowledge or culpability for anything their son did. But he said the problems with the law go beyond this case.
Individuals are allowed to contest the forfeiture. But that requires them to file a lawsuit, which costs money. And that presumes they can navigate the legal system without an attorney.
Even if they get into court, Avelar said the system is upside down.
“The government has very low burdens on itself” to justify keeping property it contends has been used in a crime, he said. “And you will oftentimes have to prove your own innocence in court.”
And there’s something else: Avelar said if a couthe property owner does not get back 100 percent of what was seized, the law makes the challenger liable for all of the government’s legal costs and investigative fees.
“You can understand why a lot of people take the position that, well, it’s not worth fighting back,” he said. “They just give up.”
But Avelar hopes to do more than get the couple their day in court and void the financial disincentives for people to try to get their property back. He said the whole way the law operates is legally flawed.
“The government officials have a profit incentive conflict of interest to seize and to forfeit as much property as possible because they get to keep, by law, up to 100 percent of what they seize and forfeit,” Avelar said.
Navajo County Attorney Brad Carlyon did not respond to a request for comments.
In general, police and prosecutors have argued that the civil forfeiture laws are important tools in combating organized crime.
Maricopa County Attorney Bill Montgomery, whose office is not involved in either lawsuit, dismissed arguments that civil forfeiture should first require a criminal conviction. He said that questions of property rights always have been handled in civil court.
He has used the example of a drug cartel courier stopped by police who might thwart conviction by claiming claim he did not know about the drugs and cash in the truck. But Montgomery said that is no reason to allow the cartel to get back the vehicle and the cash.
Avelar sniffed at that comparison with the case he is now handling.
“Do Terry and Ria, the elderly 74- and 77-year-old retired couple in eastern Washington sound like a cartel or cartel members to you or to anyone who’s given a second’s worth of thought to this issue?” he said.
Montgomery also rejected Avelar’s argument that the system is tilted in favor of the government. He said prosecutors still have to make their case to a judge that there is a “nexus” between a criminal act and the property.
As to any profit motive, Montgomery said proceeds go to the county attorney who then reviews requests by the police departments involved in the seizure for a share. He also said there are federal and state guidelines that preclude proceeds from being used by an agency to buy things that county supervisors refuse to fund “so that you can’t have asset forfeiture as a regular business to plus-up or round out your budget.”
Avelar’s complaint does not spell out how Navajo County uses the proceeds of items it seized.
But in its lawsuit last year, the ACLU listed some expenditures made with funds from its forfeitures. That included paying for Voyles’ home security system.
It also says that Babeu funnels money into a foundation “which buys things for him and his department.” What that does, the ACLU says, is allow Beabu to both avoid laws on seeking bids for items and as well as provide a public record of where the money goes.