Sidebar: Prosecutors Use Dirty Tricks to Make Sure Forfeiture Sticks

Even when property owners are determined to fight back against forfeiture, the government is adept at finding ways to try to make sure they lose anyway. Just ask Terry and Ria Platt of Prosser, Washington. In 2016, the couple loaned their son their Volkswagen Jetta. While driving through Navajo County, Arizona, he was pulled over for a window tint violation. During the stop, police found a personal use quantity of marijuana and $32,000 cash. Police arrested him and seized contraband, cash and car. 1

Neither the drugs nor the cash was enough to justify forfeiting the car under Arizona law. And there was no suggestion the Platts had done anything wrong. Nevertheless, Navajo County sent them notice it was keeping their car and they had just 30 days to object. 2

An attorney told the Platts fighting back would cost $4,000 and they would likely lose. 3 Worse, Arizona had a “reverse” attorney fee provision, since repealed, making property owners responsible for 100% of the government’s attorney fees if they lost. 4

Unbowed, the Platts responded to the highly complex and confusing notice and filed a petition seeking their property’s return—and they did it
on time. 5

Even so, county prosecutors told a court the forfeiture was “uncontested,” supposedly because the Platts had not used the words “under penalty of perjury” in their petition. Instead of giving the Platts an opportunity to correct this technical deficiency, the prosecutors put their case into a legal bucket where forfeiture is practically automatic. 6

“Uncontested forfeiture” is an administrative process the government can use to forfeit property more or less by default. The name implies it is used when no one contests a forfeiture, but this is not necessarily the case. In Arizona, contested forfeitures like the Platts’—which should go to trial—can also end up in the uncontested bucket.

That’s because Arizona law provides no check on prosecutors who unilaterally withhold a property owner’s petition from a court, which they have every incentive to do because their offices profit from forfeiture. If a prosecutor tells the court no one contested the forfeiture, the court must rubber stamp their application for forfeiture, thus depriving owners like the Platts of their property and their day in court. 7

The Platts eventually got their car back, but only after IJ filed a civil rights lawsuit on their behalf. 8 Despite this win, the suit continues. Its goal is nothing less than to dismantle Arizona’s uncontested forfeiture scheme, leaving prosecutors with one less dirty trick they can use to make forfeiture stick.