Terry and Ria’s Rude Awakening to Civil Forfeiture

When the Platts found themselves ensnared by Arizona’s forfeiture scheme, Arizona had just  earned a D- in IJ’s 2015 Policing for Profit study for having some of the worst forfeiture laws in the nation. Arizona law allows law enforcement to seize property often based on a showing of mere probable cause—the lowest standard of proof there is. When property owners mail in paperwork to claim their property, prosecutors can act like judges and throw out the property owner’s case without their claim ever being read in court. Exacerbating the problem, law enforcement officials can keep and spend up to 100 percent of what they forfeit. These laws set up a perverse financial incentive that encourages law enforcement to try to forfeit as much property and cash as possible and makes it incredibly difficult for innocent property owners to fight back. Victims are thrown into a maze of confusion that often leaves them without a way out.

Soon after Terry and Ria’s car was seized, they received a “Notice of Pending Forfeiture Making Uncontested Forfeiture Available” in the mail. The notice contained two pages of fine print informing them that Navajo County wanted to forfeit their car—and they had only 30 days to file a claim (with the court) or petition (with the prosecutor) if they wanted to object to the forfeiture. Terry and Ria consulted a lawyer who told them it would cost $4,000 to fight the forfeiture and the chances of winning were slim. Unable to afford a lawyer, the Platts tried to respond to the highly complex and confusing notice as best they could and mailed a handwritten response to the prosecutor in time to meet the 30-day deadline. However, their response would not get to a judge, as they thought. Instead, their response went to the prosecutor and Terry and Ria found themselves lost in Arizona’s forfeiture maze.

Using a process called “uncontested forfeiture,” prosecutors—not a judge or jury—would decide if Terry and Ria would get their car back.

The Platts never heard back from the prosecutor about their petition. Instead, the government took a shortcut and filed an “Application for Forfeiture” in Navajo County Superior Court, claiming that “no timely claim or petition . . . has been filed or submitted relating to said property.” Although the government admitted receiving the Platts’ petition in time, the prosecutors told the court that their petition was “null and void.” The application didn’t say why, and the government didn’t give the court a copy of the Platts’ petition. In essence, the prosecutors demanded the court just take the government at its word.

The government argued that—although Terry and Ria provided all the required information and signed the petition—they did not include the words “under penalty of perjury” with their signatures. This, the government said, meant Terry and Ria were precluded from ever getting their car back. Notwithstanding the detailed information in the petition and an additional 29 pages of supporting documentation, including a photocopy of a two-year-old check to their auto lender and their vehicle title, the government claimed that by not including those four words, “the Platts deprived the State of any opportunity to consider the Petition.”

At no point did the government ever accuse Terry and Ria of a crime. The government’s argument was purely that four missing words disqualified Terry and Ria from getting their car back. This is a trap for the unwary and unrepresented that the government has been trying to use not only to take Terry and Ria’s car from them, but also to deny them their day in court.

Arizona’s Forfeiture Maze

Arizona’s forfeiture statutes are complex, highly technical laws which even lawyers (to say nothing of ordinary people) often struggle to understand. Even though forfeiture seeks to take property from its owners, the owners are not a party to the forfeiture. Instead, to protect their rights and object to forfeiture, owners must either petition the prosecutor to reconsider the forfeiture or make themselves a party to the litigation by filing a claim. Either way, they must comply with a long list of technical requirements, including complex legal citations and mailing requirements, for their case to be considered. ¹

And they have just 30 days to provide this information.

If a property owner misses the deadline, or even if the prosecutors simply don’t think the claim or petition is good enough, the property owner loses any ability to contest the forfeiture. This means that the government will be the only party to the forfeiture. Moreover, when the government is the only party to the forfeiture, the government gets an even lower burden of proof to forfeit the property; mere probable cause as opposed to a preponderance of the evidence or, following the legislative reforms, clear-and-convincing evidence. ²

  As the Arizona Supreme Court has already recognized, this “virtually assur[es] forfeiture.” ³

Even if a property owner can successfully make themselves a party to the forfeiture, the procedures are still stacked against them. Property owners are presumed guilty and have to prove their innocence—without the benefit of a lawyer, which the government is not required to provide because forfeiture is not considered a criminal proceeding. Essentially, the property owner will be left alone to figure out Arizona’s “broad and far-reaching” forfeiture statutes. ⁴

No discussion of Arizona’s forfeiture statutes is complete without mention of the profit incentive. Law enforcement officials—both prosecutors and police—have a direct and perverse financial interest in forfeiting property. The Attorney General and various County Attorneys, for example, control the proceeds from forfeited property. ⁵

By law, these prosecutors hold the proceeds for the benefit of police agencies and the prosecutors’ office. ⁶

These proceeds are then used for, among other things, paying salaries and other compensation for the very people who are working on forfeiture. This means that both police and prosecutors have an obvious financial incentive to take property through forfeiture, motivating them to win at all costs rather than pursue justice impartially.

The Especially Unconstitutional Case of Uncontested Forfeiture

Magnifying all the constitutional faults of forfeiture is a peculiar system called “uncontested forfeiture,” the trap Terry and Ria unknowingly fell into: a system in which a prosecutor—who has a conflict of interest because he stands to profit from the forfeiture—also gets to act as the judge.

“Uncontested forfeiture” is really an administrative forfeiture in which there is no judge. A property owner sends a petition to the prosecutor and the prosecutor determines whether forfeiture is allowed. Here, the prosecutor unilaterally declared Terry and Ria’s petition “null and void,” at first without any argument and later based on a hyper‑technical allegation of deficiency. The prosecutor then filed an application for forfeiture, which ordinarily prohibits the property owner from objecting to the forfeiture and grants the government a lower burden of proof, virtually assuring the property owner will be permanently stripped of his property rights.

The U.S. Supreme Court has long recognized that “administrative adjudicators” with a conflict of interest “should not adjudicate” disputes. ⁷

After all, it violates the 14th Amendment’s due process protections to subject a person’s “liberty or property to the judgment” of a government agent who has a financial incentive to judge against the person. ⁸

Due process is violated not just when the adjudicator receives the profits of the judgment directly, but also when the adjudicator’s “executive responsibilities for . . . finances may make him partisan to maintain the high level of contribution” from the adjudications. ⁹

This is exactly what happens in “uncontested forfeiture.” The prosecutor, whose office benefits from and controls forfeiture proceeds, is given adjudicatory power to unilaterally reject objections to forfeiture. And worse yet, in Terry and Ria’s case, the prosecutor argues the courts are without power to allow property owners into the case to object.

Arizona Reformed Forfeiture Laws But Did Not Address Some Important Issues

In 2017, in response to cases like the Platts’, the Arizona Legislature enacted important reforms to this forfeiture system. The reforms,

• Raised the standard of proof in contested civil forfeiture proceedings from “preponderance of the evidence” (i.e. more likely than not) to “clear and convincing.”
• Repealed a “reverse” attorneys’ fee provision that allowed the government to stick property owners with expensive fees and costs, even when property owners won a case and instead now allows property owners, and not the government, to recoup fees if they prevail.
• Implemented new transparency requirements for forfeitures and oversight for forfeiture spending.
• Closed 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.

The 2017 reforms did not, however, address the two key issues in this case: the profit incentive or uncontested forfeiture. That is why IJ continues to litigate the case.

The Legal Challenge

This case makes two key constitutional arguments:

• “Uncontested forfeiture” violates the constitutional guarantee of due process by allowing prosecutors to usurp the role of judges and adjudicate proceedings in which they have a direct financial interest.

• The profit incentive conflict of interest renders the whole forfeiture scheme—more than just “uncontested forfeiture”—unconstitutional. As Terry and Ria’s case demonstrates, the incentive statutes motivate law enforcement to pursue and obtain forfeitures which have no basis in law. This deprives people like Terry and Ria of their property without due process of law in violation of the 14th Amendment to the U.S. Constitution and Article 2, section 4 of the Arizona Constitution.

The Litigation Team

This case is being litigated by IJ Attorneys Paul Avelar and Keith Diggs.

About the Institute for Justice

The Institute for Justice is the national law firm for liberty and the leading advocate for property rights. This case is the latest in IJ’s nationwide initiative to end civil forfeiture. IJ has successfully challenged civil forfeiture in Oklahoma and federal use of civil forfeiture in Massachusetts, Michigan, Iowa, New York and North Carolina. For more information on IJ’s national initiative to end civil forfeiture, visit endforfeiture.com.

Endnotes

1: A.R.S. § 13-4311(E)-(F).

2: Compare A.R.S. § 13-4314(A) (probable cause), with A.R.S. § 13-4311(M) (clear and convincing evidence, formerly preponderance of the evidence).

3: Wohlstrom v. Buchanan, 180 Ariz. 389, 391, 884 P.2d 687, 689 (1994) (“Amicus argues that because the state still had to show probable cause, petitioner did not really lose anything. Few who are familiar with the process would agree. Because no one was present to challenge the state’s case and petitioner had no chance to prove a forfeiture exemption under § 13-4304(3), this proceeding was essentially ex parte. And, as any lawyer knows, it is considerably easier to prevail in an ex parte matter than in a contested one.”).

4: In re $315,900, 183 Ariz. 208, 216, 902 P.2d 351, 359 (App. 1995).

5: A.R.S. §§ 13-2314.01(A), 13-2314.03(A), 13-4315(A)(2).

6: A.R.S. §§ 13-2314.01(D), A.R.S. § 13-2314.03(D).

7: Gibson v. Berryhill, 411 U.S. 564, 579 (1973).[/c] After all, it violates the 14th Amendment’s due process protections to subject a person’s “liberty or property to the judgment” of a government agent who has a financial incentive to judge against the person.

8: Tumey v. Ohio, 273 U.S. 510, 523 (1927).

9: Ward v. Village of Monroeville, 409 U.S. 57, 60 (1972).