Originally Published: February 20, 2017 6:01 a.m.
PHOENIX — State lawmakers are moving to limit the power of police and prosecutors to take away property they say is involved in criminal activity without actually having to first convict the owner of any crime.
A wide-ranging measure to reform the state’s civil asset forfeiture laws would scrap the current standard that requires prosecutors to prove only by a “preponderance of the evidence” that the property is linked to a crime. That essentially means it is more likely than not, akin to a 51-49 percent balance.
Instead, prosecutors would have to provide “clear and convincing evidence” to a judge of the connection between the house, vehicle, cash, computer or other item that they want to seize and convert for their own use.
That’s not quite the same as “beyond a reasonable doubt” required for a criminal conviction. But Rep. Eddie Farnsworth, R-Gilbert, said it strikes a reasonable balance between the need to deny criminals the tools of their crimes and the rights of individuals to be free from wanton seizures.
HB 2477 makes other changes that now gives prosecutors an advantage in court.
Perhaps the most important is that it makes it more likely that property owners actually will get their day in court. And the issue there is financial.
“We have, for example, somebody who loses a $5,000 car because their son has marijuana on the front seat,” Farnsworth explained.
“They have to spend $10,000 to try and get an attorney to get their property back,” he continued. “Well, that doesn’t work.”
But the changes go beyond the property owner being able to recover his or her legal fees. The legislation, awaiting House action after unanimous approval this past week by the Government Committee, also would repeal existing laws that actually can force someone who sues to get property back but loses in court to pay the legal bills of the government agency.
Attorney Amy Kalman said Arizona is only one of two which has such a provision in the statutes.
“Running the risk of paying thousands if not hundreds of thousands of dollars if they did not prevail in court really was such a huge chilling effect on even being able to litigate and fight for their property,” said Kalman with Arizona Attorneys for Criminal Justice, a group made up largely of defense lawyers.
“If a person came to me and said ‘I’d like to fight to get my car back,’ I’d have to have told them ‘You run a huge risk of having to pay a lot more than your car is even worth if you fight this,’” she said.
Will Gaona with the American Civil Liberties Union said it’s even worse than the simple risk. He said prosecutors are using that provision to deter people from even thinking about trying to get their property back.
He read lawmakers a letter a Pinal County prosecutor sent to a defense lawyer who was raising the issue of the legality of a client’s seized property. That prosecutor, Gaona said, wrote that he always asks judges to award fees as a method of increasing the financial risk for people who choose to fight.
“The government shouldn’t be able to threaten people with attorney’s fees to keep people out of court,” Gaona said.
HB 2477 also would eliminate a provision that now precludes property owners from saying that some of the evidence prosecutors are using should not be considered because it illegally obtained.
That right to suppression now exists only in criminal cases. But under current law prosecutors can use evidence which is inadmissible in criminal cases in trying to take someone’s property.
Rep. David Stringer, R-Prescott, questioned whether the changes go far enough. He asked why the state should be able to take property at all without first getting a criminal conviction, something that requires showing beyond a reasonable doubt that the person is guilty of an offense.
Farnsworth said the problem is no one knows whether police and prosecutors are abusing the law. Nor are there any statistics about how many times property is seized and there not only has not been a criminal conviction but that no one was even charged with a crime.
HB 2477 would require an accounting of each and every seizure, whether there was a criminal conviction, whether the owner sued, whether that person had a lawyer and what ultimately happened.
Farnsworth said once lawmakers have that information they will be better able to tell if further changes are necessary.
“We don’t want to harm law enforcement in the name of going too far,” he said.
“But law enforcement isn’t my primary concern,” Farnsworth continued. “Protection citizens against law enforcement that may be doing things that they’re not supposed to do, that’s my primary concern.”
So far prosecutors have not opposed these changes. Where they are balking is losing their ability to decide how to spend the dollars, with a final decision made by county supervisors.
Deputy Pima County Attorney Kathleen Mayer said that “injects needless politics into this process.”
“Sometimes there are conflicts between a county attorney and the board of supervisors,” she said. And Mayer asked what happens if the supervisors deny what prosecutors believe is “a perfectly legal request.”
But Aimee Rigler of the Arizona Free Enterprise Club said the spending can’t be left to police and prosecutors.
She cited a mailing by Paul Babeu paid for with civil forfeiture dollars when he was Pinal County sheriff which went out to voters about six months before the GOP congressional primary race where he was running.
Rigler said while it “looks like electioneering,” it probably fits within what’s allowed under existing laws, though she questioned whether it would have been allowed had Babeu needed to get permission of supervisors for the expenditure.
Then there’s the criminal conviction of Christopher Radtke, the former chief deputy for the Pima County Sheriff’s Office, who recently pleaded guilty in federal court after being accused of embezzling $500,000 in seized funds -- funds over which there was no county oversight.
And there’s a lot of money out there. Paul Avelar of the Institute for Justice told lawmakers that police and prosecutors have collected more than $485 million in seized assets since 2000 and are sitting on about $66 million right now.