An elderly couple claims Arizona’s civil forfeiture laws are unconstitutional after law enforcement seized their car, even though the couple was never criminally charged and was not even in the state when the car was seized.
Both in their 70s, Terry and Ria Platt loaned their car, a 2012 Volkswagen Jetta, to their son Shea this past April. While driving back home from vacation in May, Shea was pulled over in Navajo County, Arizona for tinted windows. Law enforcement seized and impounded the car after finding “personal use marijuana and drug paraphernalia,” but as of October, they have filed no charges for any crime stemming from the traffic stop. Terry and Ria—who were well over a thousand miles away in Washington State when their son was pulled over—have never been accused of any wrongdoing.
In late May, the couple received a “Notice of Pending Forfeiture,” and had just 30 days to file a response to prevent their car from being automatically forfeited through a process called “uncontested forfeiture,” an administrative proceeding where prosecutors—and not impartial judges—decide whether to keep or return property. Unlike in criminal cases, property owners do not have a right to court-appointed counsel. Unable to afford their own attorney, which would have cost them $4,000, the Platts instead decided to file the claim themselves, which sought “full restitution and the return of our Volkswagen,” along with other taken personal property.
Even before they had a chance to make their case in court, the state rejected their petition. When the Platts first responded to the state, their claim was filed on time and stated the seized car was “NOT UNCONTESTED!” Nevertheless, Navajo County prosecutors decided that the Platts’ handwritten petition was “null and void,” initially without giving a reason and later explaining that it did not include four words, “under penalty of perjury.” Prosecutors then filed for an “application for forfeiture,” which allows the government to forfeit property without a hearing for the owner and on the showing of probable cause. That is a lower standard of proof than the one used in criminal cases and Arizona’s contested forfeiture proceedings.
“This has been a nightmare,” Ria said in a statement. “This should never happen to anyone in the United States.”
Now Terry and Ria have joined with the Institute for Justice and filed a civil rights lawsuit claiming the Arizona’s civil forfeiture laws violate their right to due process. In particular, their complaint asserts that uncontested forfeiture is a “procedural maze” and that prosecutors have a “pecuniary interest” to seek forfeiture since agencies can receive 100 percent of the proceeds from property forfeited under state law.
In 2015, Navajo County had over $650,000 in available funds for its forfeiture account. Statewide, between 2000 and 2014, Arizona law enforcement collected over $410 million in forfeiture proceeds, a report by the Institute for Justice found. Over $62 million was spent on “administrative expenses,” which includes salaries, overtime and benefit. That represents 28 percent of all expenditures made with forfeiture funds.
“Civil forfeiture warps law enforcement priorities away from pursuing justice to pursing assets,” the lawsuit claimed.
In addition, since the troopers conceded that any cannabis found in the car with Shea was “personal use,” the Institute for Justice asserts that “the State cannot meet its burden of proof for forfeiture.” Under state law, “no property may be forfeited” in relation to an alleged drug crime, unless it was for “financial gain” and involves an amount higher than the state’s “threshold amount.” For marijuana, that number is two pounds—dramatically higher than what law enforcement said they found.
The Platts’ lawsuit is just the latest in a long string of forfeiture controversies in Arizona. Last year, Navajo County Sheriff’s Office obtained electronic recovery and access to data (ERAD) readers, which allows them to “freeze or seize funds” stored on prepaid debit cards. The manufacturer of the ERAD devices will even receive 5.7 percent of all money seized using the readers. ERAD readers have been highly controversial. In June, Oklahoma Gov. Mary Fallin suspended the Oklahoma Highway Patrol’s ERAD program, after a public backlash.
On Monday, Christopher Radtke, the chief deputy for Pima County Sheriff’s Department, resigned after he was indicted for misusing forfeiture funds. According to the Arizona Daily Star, the department spent over $10,000 on equipment so that the chief deputy’s niece could manage a café inside the department. The niece was also allowed “to run her restaurant rent-free and without a county contract.” Radtke faces a seven-count indictment of theft and conspiracy to commit money laundering.
In Pinal County, officials are currently under investigation by the FBI for sending forfeiture funds to the Arizona Public Safety Foundation. In 2012 and 2013, the Foundation received nearly $520,000 in forfeiture money from the Pinal County Sheriff Office. That represented 99.38 percent and 86.62 percent of its funding in 2012 and 2013 respectively. According to the ACLU, “it seems that by funneling money to a private group…[the sheriff] is able to avoid procurement laws and other transparency regulations which usually apply to government purchasing.”
Pinal County law enforcement has also paid for retirement contributions and a personal home security system for the county attorney with forfeiture money, though that spending is not part of the FBI probe.
In July 2015, the ACLU of Arizona filed a civil rights lawsuit against Pinal County in federal court. In their case, the ACLU is representing Rhonda Cox, who had her truck seized and forfeited, after she loaned her truck to her son, who, without Rhonda’s knowledge or consent, used her truck for criminal activity. Although her son was ultimately imprisoned for theft and burglary, Rhonda, the truck’s legal owner, was never criminally charged.
Even law enforcement officials have turned against the practice. In 2012, former Arizona Attorney General Grant Woods announced that he had a road to Damascus moment regarding civil forfeiture. “I used to favor civil forfeiture prior to criminal conviction until I saw so many instances where, because of the money involved, no criminal prosecution ever occurred or was even seriously contemplated,” he wrote.