J. Justin Wilson
J. Justin Wilson · April 10, 2017

Today, the Arizona House of Representatives sent a sweeping overhaul of the state’s civil forfeiture laws to Gov. Doug Ducey. Under civil forfeiture, law enforcement agencies can seize property merely suspected of involvement in criminal activity. Unlike criminal forfeiture, civil forfeiture allows the government to permanently keep property without charging anyone with—let alone convicting them of—a crime. And Arizona law allows the seizing agencies to keep up to 100 percent of the proceeds from forfeited property.

“Arizona’s civil forfeiture maze is the greatest threat to property rights and due process today,” explained Institute for Justice Senior Attorney Paul Avelar. “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.”

Sponsored by Rep. Eddie Farnsworth, HB 2477 overwhelmingly passed both the Arizona House and Senate. In order to improve the state’s forfeiture laws, HB 2477 would:

  • Implement new oversight for forfeiture spending. Law enforcement agencies must submit a request for RICO funds to the county attorney, which in turn would be approved or rejected by the county board of supervisors. In Arizona, over 28 percent of all forfeiture expenditures have gone towards “administrative expenses,” which includes salaries, benefits and overtime.
  • Close a forfeiture loophole in federal law by banning Arizona law enforcement from transferring or referring seized property to a federal agency, unless the property is valued at over $75,000.
  • Raise the standard of proof in civil forfeiture proceedings from “preponderance of the evidence” (i.e. more likely than not) to “clear and convincing.”
  • Implement new transparency requirements, obliging agencies to report the value, type and date of a property seizure, if any criminal charges were filed, and the final disposition of the seized property.
  • Require an audit for forfeiture expenditures made by the Attorney General’s office.
  • Repeal Arizona’s unique “reverse” attorneys’ fee provisions and instead allow property owners, and not the government, to recoup fees if they prevail.

However, an IJ lawsuit filed against Arizona’s forfeiture system will continue. In Arizona, 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—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. From 2000 to 2014, Arizona agencies collected $412 million in forfeiture revenue, or more than $27 million each year on average.

“Arizona has some of the worst civil forfeiture laws in the nation, and we applaud the Arizona State Legislature for curbing many abusive practices,” noted IJ Attorney Keith Diggs. “But we will keep fighting until Arizona’s rigged system is completely abolished, once and for all.”

Civil forfeiture has sparked a firestorm of controversy in recent years, earning criticism from figures and organizations as diverse as John Oliver100 different editorial boards, both the Democratic and Republican Party platforms and U.S. Supreme Court Justice Clarence Thomas. Nationwide, 19 states and Washington, D.C. have tightened their forfeiture laws (including Ohio, Michigan, Mississippi, Utah and Minnesota just this year). Further legislative efforts are currently pending in about 15 states.