Phoenix, Ariz.—Arizona’s forfeiture laws are so highly complex that even lawyers often struggle to understand them—let alone the average person. The state’s laws allow law enforcement officials to take and keep property, while depriving innocent victims of their constitutional rights. And no one knows this better than Terry and Ria Platt—an innocent elderly couple caught up in Arizona’s forfeiture maze—who have teamed up with the Institute for Justice to put an end to this unconstitutional process.
In Arizona, property owners face a rigged system where each turn can lead to a dead-end. Owners have only 30 days to either petition the prosecutor to reconsider the forfeiture or ask permission to go to court to fight back. But this process requires owners to file a sophisticated legal document with a lot of information—often without the benefit of a lawyer. If they miss the 30-day window or mess up the document, they lose their property forever. And most of the time, it is the prosecutor—not a judge—who decides what to give back and what to keep. Even worse, police and prosecutors get to keep 100 percent of what they forfeit, setting up a financial incentive to seize as much property and cash as they can. In fact, Arizona law enforcement seized more than $36,000,000 in 2015 alone.
“Arizona’s civil forfeiture maze is the greatest threat to property rights and due process today,” explained IJ Senior Attorney Paul Avelar, who is representing the Platts. “No one should lose their property without being convicted of a crime and law enforcement should not be allowed to keep and spend what they forfeit.”
Navajo County prosecutors have been using this system to keep Terry and Ria from having their day in court. The Platts had their car seized after police pulled over their son—who does not own the car—for a window tint violation. The police found cash and a small amount of personal-use marijuana, both of which the son said were his. Arizona law does not allow law enforcement to forfeit property for having cash and a small amount of marijuana, yet prosecutors are ignoring the law and trying to keep the car.
Terry and Ria got a notice in the mail a few weeks after the seizure telling them that the prosecutors would be trying to forfeit the car. “We’re not lawyers and we’d never heard of civil forfeiture,” said Terry. “This has been a nightmare,” said Ria. “This should never happen to anyone in the United States.”
Terry and Ria mailed in the paperwork to get the car back before the 30-day window closed. But Terry and Ria had unknowingly fallen into a trap called “uncontested forfeiture,” which is an administrative forfeiture where there is no judge, only a prosecutor who reviews petitions and decides whether to keep the property or return it. The prosecutor who reviewed the Platts’ petition declared it “null and void” and filed an application for forfeiture. That prohibits the property owner from fighting the forfeiture and grants the government a lower burden of proof, virtually assuring the property owner will be permanently stripped of his property rights. Much or most of what Arizona law enforcement takes in through civil forfeiture involves uncontested forfeiture.
“The name “uncontested forfeiture” is a lie and the process is unconstitutional,” said IJ Attorney Keith Diggs. “Uncontested forfeiture violates due process because it allows prosecutors to act as judges, even though they get to keep what they forfeit. The U.S. Supreme Court has already struck down similar schemes as a violation of due process.”
“Terry and Ria are innocent and haven’t done anything wrong,” explained Avelar. “But in the upside-down world of civil forfeiture, the government can presume them to be guilty until they prove their innocence. This case will put a stop to Arizona’s rigged forfeiture system.”