Andrew Wimer
Andrew Wimer · April 8, 2021

PHOENIX—Proposed legislation to reform civil forfeiture practices in Arizona, House Bill 2810, was on a swift path to confirmation after nearly unanimous support in the House. Now, however, a proposed amendment in the Senate could gut the proposed reforms, encouraging abusive law enforcement practices rather than correcting them. The Institute for Justice (IJ) opposes the amendment and wants to bring attention to a recent example of abuse that illustrates what is at stake.

“Jerry Johnson 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,” said IJ Managing Attorney Paul Avelar. “If forfeiture proponents get their way and amend HB 2810, it will encourage Arizona law enforcement to continue targeting people like Jerry, who need to travel with cash for legitimate reasons such as purchasing vehicles for their business. A bill meant to correct injustices could end up encouraging them if amended poorly.”

Jerry Johnson lives outside Charlotte, North Carolina and owns a small trucking company. He was looking to purchase a third truck for his fleet. After finding the model of a Peterbilt semi-truck he had been looking for at the Phoenix location of Ritchie Bros. auto auction, he scraped together his savings, borrowed money from family and purchased an airline ticket. Hoping to cut the best possible deal on the truck, Jerry brought $39,500 in cash with him, splitting it between his carry-on and checked luggage. Based on what happened in Phoenix, TSA luggage screeners apparently alerted Phoenix police to the presence of cash in his luggage.

When Jerry collected his checked luggage, he was met by Phoenix airport police, who questioned him, searched his bags and accused him of laundering money for drugs. Jerry was interrogated and told that unless he signed a “waiver” form, he would be arrested. Alone and far from home, Jerry signed the “waiver” under duress, not fully understanding that it said he was surrendering his ownership of his money but believing he would be arrested and sent to jail if he refused to sign.

IJ is currently appealing Jerry’s forfeiture case after a Maricopa County district court ruled that Jerry could not prove his innocent ownership of the money that was seized from him and thus did not have standing to contest the forfeiture. Neither Jerry nor any other individual has been charged with a crime connected with the money.

Jerry’s case potently illustrates why there is momentum to pass HB 2810, which adopts common-sense reforms that have already been adopted in other states. The bill:

  • Requires a criminal conviction before forfeiting property;
  • requires government to show an owner knew about criminal activity, rather than requiring owners to prove their own innocence;
  • prevents the use of “waivers” that law enforcement uses to coerce people into giving up their rights under threat of jail time;
  • eliminates non-judicial forfeiture to ensure every property owner can have their day in court; and
  • creates a prompt hearing to help ensure a person’s rights are protected without delay.

HB 2810 was approved by the House on a 57-2 vote and the Senate Judiciary Committee approved the bill 8-0. But law enforcement agencies sprang a last-second amendment demand that would gut the reforms and has prevented the bill from receiving a final vote. Among the amendments demanded are:

  • Allowing the use of “waivers” to circumvent the conviction requirement;
  • eliminating the conviction requirement in any case involving cash, bank accounts, etc. of more than $10,000; and
  • limiting the time in which a person can ask for a hearing to get their property back.

Jerry’s case demonstrates how people can lose their money to forfeiture even when they are never charged with any crime. If these amendments to HB 2810 are made, they would perversely encourage Arizona law enforcement to pressure property owners to sign on-the-spot “waivers,” and create a loophole in the conviction requirement, which would not apply to cases like Jerry’s that involve seizures of more than $10,000. Jerry’s story could become distressingly common if these amendments are allowed.