Civil Asset Forfeiture Violates Private Property Rights

Imagine a scenario where the government can take a private citizen’s property they suspect was involved in a crime without ever having to charge anyone for a crime.

Before one assumes we are speaking of some foreign country, this is the legal reality of civil asset forfeiture in the United States.

In Arizona, civil asset forfeiture allows law enforcement to seize property they believe is involved in a crime and then take that property through a civil proceeding.  And because forfeiture operates under the premise that property itself can be guilty of a crime, it has produced a barrage of strange case names such as “Nebraska v. One 1970 2-Door Sedan Rambler” and “State of Texas v. One Gold Crucifix.”

Civil forfeiture became prevalent in the U.S during the 1980’s as a part of the “War on Drugs.”  It was a means to relieve big drug kingpins of the means and spoils of their crimes.  However, the use of asset forfeiture by law enforcement quickly expanded to targeting of lower value assets and currency, calling into question whether the activity is motivated by stopping crime or financial gain.  Some in law enforcement, such as the City Attorney for Las Cruces, New Mexico, described asset forfeiture as “a gold mine.”

According to the Institute for Justice, Arizona ranks as one of the worst states, earning a D- for abusive forfeiture laws.  The state’s dismal score is due to several areas of the law that create a disincentive for innocent owners to fight the government to recover their property.

Fortunately, reform to Arizona’s forfeiture laws is on the horizon.  A broad coalition of organizations and citizens have come together to propose HB2477, sweeping civil asset forfeiture reform sponsored by Representative Eddie Farnsworth (District 12).

HB2477 would make key changes to the current law:

  • Raises the burden of proof required of law enforcement to seize property
  • Makes claimants eligible to recover attorney fees when they prevail in court. Currently claimants are not only prohibited from recovering legal fees but are liable to pay the government’s attorney fees;
  • Creates third party accountability for the expenditure of forfeiture dollars;
  • Requires substantial reporting to make the type and value forfeitures transparent to the public and policy makers – including when forfeitures don’t result in a criminal conviction;

This legislation is a long time coming for Arizona.  Shocking abuses of civil rights and shady uses of funds are a current reality.  Cases such as Cox vs Voyles in 2013 demonstrate how innocent third party property owners are easily captured and trapped by a system that is tipped to favor government.

Pima County has had its fair share of scandal when it comes to flagrantly conflicted expenditures of forfeiture monies.  Navajo County recently seized a vehicle from an elderly couple from Washington and only returned it after Institute for Justice filed suit.  Former Maricopa County Sheriff Joe Arpaio used forfeiture dollars for a questionable trip to Honduras as well as to lease high-end vehicles for top management.

Even former Pinal County Sheriff Paul Babeu abused the program when he used RICO funds to write checks to a non-profit housed within his office and to pay for a political mailer sent to registered voters six months prior to a Republican Primary.

Civil Asset Forfeiture in Arizona is in urgent need of reform. The current system is a threat to property rights and must be rectified.  HB2477 would be a substantial step in the right direction – now it’s in the hands of lawmakers and the Governor to do what’s right.