Some more forward progress has been made against civil asset forfeiture, this time in Arizona. Governor Doug Ducey put his signature on a reform bill late last week, raising the evidentiary bar for seizures in the state.
House Bill 2477 restricts police and prosecutors from abusing the civil forfeiture process by requiring them to show “clear and convincing evidence” that certain property was linked to a crime before the seizure or forfeiture of any assets. Under current law, prosecutors are only required to show a “preponderance” of the evidence.
The move drew bipartisan support from nearly all members of the Legislature, with only one vote lodged against the measure.
While it doesn’t go so far as to establish a conviction requirement, it does make it a little more difficult for law enforcement agencies to walk off with citizens’ possessions. Unfortunately, not much has been done to address the terrible recourse process, which dumps the burden of proof back on the citizen whose possessions have been taken.
Navigating this particular legal thicket often requires a lawyer and there’s a good chance the best possible outcome will be a partial release of the property seized. Fortunately, going the lawsuit route will be a little less risky in the future: the new law also ensures legal fees will be awarded to winning parties who manage to litigate the return of seized property.
Even if Governor Ducey had been opposed to the reform bill, he wouldn’t have been able to defend a veto in the same way Idaho Governor Butch Otter did when shooting down a popular reform effort there. There’s plenty of evidence the state’s asset forfeiture laws have been abused.
After analyzing more than 1,300 quarterly financial reports filed by agencies detailing seizures and expenditures from fiscal years 2011 through 2015, AZCIR found that the state commission tasked with compiling statewide civil asset forfeiture figures omitted roughly $20 million, or 16 percent of overall spending, from its reports.
And when it comes to tracking what law enforcement agencies are seizing and from whom, virtually no data is available other than aggregate totals of the amounts seized.
Along with zero transparency and questionable accounting, there are a few small law enforcement agencies where seizing stuff is basically all they do.
[S]anta Cruz County […] agencies seized more than $5 million during the past five years. All but $90 came from auctioning forfeited property, such as cars and houses. Considering the total, along with the small population, the county also had the highest seizure rate – more than three times the state average.
Agencies in La Paz County, with a population of 20,500, seized $1.6 million during the past five years, the second highest rate in the state – $955,000 of that in 2015 alone.
In Arizona, law enforcement agencies are allowed to spend seized funds directly on employee salaries, which has led to this sort of thing being common:
The Attorney General’s Office spent more on personnel than any other agency at $6.4 million, which funded 50 positions, according to an August 2016 budget proposal document provided to AZCIR.
When your paycheck depends directly on successful seizures, there’s no way you won’t be performing as many seizures as possible.
This new law doesn’t make dramatic changes to existing forfeiture statutes, but any chance, no matter how small, always appears to be unacceptable to the agencies affected. Here’s Chief Deputy (Mohave County Attorney’s Office) James Schoppman’s reaction:
In a letter to the governor pleading the county’s case, Schoppmann wrote, “If HB 2477 is enacted, Mohave County will suffer because of an overreaction to the misdeeds of a very small percentage of others and the result will be a net loss to our community and a net gain for drug traffickers.”
Apparently, it’s a net win for the community when criminals go free but their money goes to pay DA’s office salaries. The statement is complete crap. Arizona law enforcement agencies are handfuls of cash from hundreds of victims and doing almost nothing to make a dent in drug cartel operations. This systemic abuse won’t be stopped by the new law, but it will be slowed. Arizona law enforcement will just have to exercise a bit more discretion when separating citizens from their property.
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Author: Tim Cushing