Andrew Wimer
Andrew Wimer · May 5, 2021

PHOENIX—Arizona Governor Doug Ducey on Wednesday signed a bipartisan bill (HB 2810) that strengthens due process protections for property owners facing civil forfeiture.

The bill had received overwhelming bipartisan support in both the House—which approved it 57-2—and Senate—which approved it 29-1. Arizona, which adopted some reforms in 2017, joins a growing list of states that have adopted similar reforms since  2014.

Under civil forfeiture, law enforcement agencies can seize and keep property without ever charging the owner with a crime. Worse, police and prosecutors can keep 100% of the forfeited proceeds, creating a perverse incentive for abuse. Over the past two decades, Arizona law enforcement agencies forfeited more than $530 million, according to a 2020 report from the Institute for Justice.

“Civil forfeiture threatens everyone’s property and due process rights,” said Paul Avelar, the Institute for Justice Arizona Office Managing Attorney. “The government can take your car, your home, and your life savings without ever charging you with a crime, much less convicting you. HB 2810 makes important reforms to Arizona’s forfeiture laws to protect innocent property owners from government abuse.”

HB 2810 makes five important reforms:

  • Requires a conviction in criminal court to forfeit property in civil court in most instances. Similar requirements are found in 15 other states;
  • Restores the presumption of innocence by requiring the government to show that owners are not innocent before taking their property. Similar requirements are found in 13 other states and the district of Columbia;
  • Bans officers from coercing owners to waive or relinquish their rights to property. Similar requirements are found in three other states;
  • Abolishes “non-judicial” forfeiture, a process that allows law enforcement to forfeit property without the case ever going before a judge; and
  • Creates a prompt, post-deprivation hearing for owners to request the return of their property.

Despite widespread recognition that forfeiture is being abused and bipartisan support for reforms, reforms have faced stiff opposition from well-organized law enforcement groups. Tellingly, some of these groups have admitted that funding concerns drive their resistance to reforms. Law enforcement agencies in Arizona took in $24 million through the state forfeiture program in FY 2019 alone. And they spend almost all of their forfeiture funds on themselves: More than one-third of all expenditures went to fund salaries and personnel costs; only 3% went to Community Programs; and just one-third of 1% went to Victim Compensation and Services.

There is also increasing evidence that forfeiture does not work.  Evidence from five states, including Arizona, showed that more forfeiture proceeds don’t help police solve more crimes or reduce drug use. Instead, police do appear to ramp up forfeiture activity when local economies suffer (and department budgets are likely to be tight ), suggesting police do use forfeiture to raise revenue. Perversely, more forfeiture proceeds may make police less effective at solving violent crimes because increases in forfeiture proceeds are associated with fewer violent crimes solved. The promise of revenue may entice police to spend fewer resources on violent crimes and more on crimes more likely to lead to forfeiture. Indeed, in the six years since New Mexico adopted the nation’s strongest forfeiture reforms, there has been no increase in crime rates or decreases in arrest rates even though law enforcement repeatedly warned those things would happen.

HB 2810 will go a long way towards protecting innocent owners like Jerry Johnson. Based in Charlotte, North Carolina, Jerry owns a small trucking company and found a semi-truck he wanted to buy in Phoenix. He scraped together his savings, borrowed money from family and purchased an airline ticket, bringing $39,500 in cash with him.

But when Jerry collected his checked luggage, Phoenix airport police accused him of money laundering and demanded he sign a “Disclaimer of Ownership” form. Believing he would be arrested and sent to jail if he refused, Jerry signed the “waiver” under duress, not fully understanding that it said he was surrendering his ownership of his money. IJ is now appealing Jerry’s case after a Maricopa County district court ruled that Jerry could not prove he was an innocent owner and didn’t have standing to contest the forfeiture.

“Jerry did nothing wrong by flying to Phoenix with $39,500 in cash, yet law enforcement is trying to take his money forever without ever charging him with a crime,” Avelar added. “His case is a clear example of how civil forfeiture is abusive and why reforms like HB 2810 are so desperately needed in Arizona.”

HB 2810 also protects innocent owners like Terry and Ria Platt. Terry and Ria found themselves in the maze of Arizona’s non-judicial forfeiture system when their car was seized after police pulled over their son—who did 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. Even though Arizona law does not allow forfeiture of the car for having cash and a small amount of personal use marijuana, prosecutors tried to ignore the law and forfeit the car.

When Terry and Ria submitted paperwork to the prosecutor to try to get their car back, the prosecutors ignored it. The prosecutors then told the court the paperwork didn’t count, without giving a reason why or letting the court see the paperwork, and that Terry and Ria had therefore forfeited their right to their day in court. After months of denying Terry and Ria their car and their rights, the prosecutors only relented and returned their car after IJ sued. But the prosecutors continued to claim that everything they had done to Terry and Ria was legal.

“In the upside-down world of civil forfeiture, the government could presume Terry and Ria to be guilty until they proved their innocence and could even deny them their day in court to present their proof,” explained Avelar. “Although HB 2810 will protect property owners going forward, IJ will continue to litigate on behalf of Jerry and the Platts until their rights are fully protected by the courts.”