Arizona Governor Signs Asset Forfeiture Reform Bill Into Law, Raising Evidentiary Burden For Law Enforcement

from the LEO-tears-at-11 dept

Some more forward progress has been made against civil asset forfeiture, this time in Arizona. Governor Doug Ducey put his signature on a reform bill late last week, raising the evidentiary bar for seizures in the state.

House Bill 2477 restricts police and prosecutors from abusing the civil forfeiture process by requiring them to show “clear and convincing evidence” that certain property was linked to a crime before the seizure or forfeiture of any assets. Under current law, prosecutors are only required to show a “preponderance” of the evidence.

The move drew bipartisan support from nearly all members of the Legislature, with only one vote lodged against the measure.

While it doesn't go so far as to establish a conviction requirement, it does make it a little more difficult for law enforcement agencies to walk off with citizens' possessions. Unfortunately, not much has been done to address the terrible recourse process, which dumps the burden of proof back on the citizen whose possessions have been taken.

Navigating this particular legal thicket often requires a lawyer and there's a good chance the best possible outcome will be a partial release of the property seized. Fortunately, going the lawsuit route will be a little less risky in the future: the new law also ensures legal fees will be awarded to winning parties who manage to litigate the return of seized property.

Even if Governor Ducey had been opposed to the reform bill, he wouldn't have been able to defend a veto in the same way Idaho Governor Butch Otter did when shooting down a popular reform effort there. There's plenty of evidence the state's asset forfeiture laws have been abused.

After analyzing more than 1,300 quarterly financial reports filed by agencies detailing seizures and expenditures from fiscal years 2011 through 2015, AZCIR found that the state commission tasked with compiling statewide civil asset forfeiture figures omitted roughly $20 million, or 16 percent of overall spending, from its reports.

[...]

And when it comes to tracking what law enforcement agencies are seizing and from whom, virtually no data is available other than aggregate totals of the amounts seized.

Along with zero transparency and questionable accounting, there are a few small law enforcement agencies where seizing stuff is basically all they do.

[S]anta Cruz County [...] agencies seized more than $5 million during the past five years. All but $90 came from auctioning forfeited property, such as cars and houses. Considering the total, along with the small population, the county also had the highest seizure rate – more than three times the state average.

Agencies in La Paz County, with a population of 20,500, seized $1.6 million during the past five years, the second highest rate in the state – $955,000 of that in 2015 alone.

In Arizona, law enforcement agencies are allowed to spend seized funds directly on employee salaries, which has led to this sort of thing being common:

The Attorney General’s Office spent more on personnel than any other agency at $6.4 million, which funded 50 positions, according to an August 2016 budget proposal document provided to AZCIR.

When your paycheck depends directly on successful seizures, there's no way you won't be performing as many seizures as possible.

This new law doesn't make dramatic changes to existing forfeiture statutes, but any chance, no matter how small, always appears to be unacceptable to the agencies affected. Here's Chief Deputy (Mohave County Attorney's Office) James Schoppman's reaction:

In a letter to the governor pleading the county’s case, Schoppmann wrote, “If HB 2477 is enacted, Mohave County will suffer because of an overreaction to the misdeeds of a very small percentage of others and the result will be a net loss to our community and a net gain for drug traffickers.”

Apparently, it's a net win for the community when criminals go free but their money goes to pay DA's office salaries. The statement is complete crap. Arizona law enforcement agencies are handfuls of cash from hundreds of victims and doing almost nothing to make a dent in drug cartel operations. This systemic abuse won't be stopped by the new law, but it will be slowed. Arizona law enforcement will just have to exercise a bit more discretion when separating citizens from their property.


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  • identicon
    Anonymous Coward, 18 Apr 2017 @ 6:52pm

    Small word missing

    Arizona law enforcement agencies are *taking* handfuls of cash from hundreds of victims and doing almost nothing to make a dent in drug cartel operations.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 18 Apr 2017 @ 7:20pm

    "A law preventing me from doing something I would never do will be highly detrimental to my ability to do my job!"

    In a letter to the governor pleading the county’s case, Schoppmann wrote, “If HB 2477 is enacted, Mohave County will suffer because of an overreaction to the misdeeds of a very small percentage of others and the result will be a net loss to our community and a net gain for drug traffickers.”

    And once again a defender of the 'It's not armed robbery if you have a badge' demographic puts forth an argument that shoots itself in the foot. If it's really only a 'small percentage' of officers stealing stuff they have no rights to, then the impact will be minimal and focused entirely on the 'problematic minority'.

    The only way a higher bar being required before a seizure of property will be allowed will be a 'net loss' is if stealing stuff without that level of evidence, that is being able to show that the property in question is linked to a crime, is too high of a bar for the police to meet, in which case they have no justification to be stealing the property in the first place.

    There's also the issue that if this is an 'overreaction' to the actions of a 'small percentage', that overreaction is likely based on the police doing nothing about that 'small percentage'. If it's really only a few abusing the law, and the police in generally don't support such activity, then the police could have easily solved the problem themselves by sacking the responsible individuals. That they didn't, allowing the problem to fester and get worse and leaving the state lawmakers to force the issue is entirely on them.

    It's not perfect, and really should have gone the extra step to require a conviction, but it's better than nothing. Just a pity that it needs to be said at all.

    reply to this | link to this | view in chronology ]

    • icon
      The Wanderer (profile), 20 Apr 2017 @ 6:19am

      Re: "A law preventing me from doing something I would never do will be highly detrimental to my ability to do my job!"

      Well, to be fair, this isn't necessarily an entirely inconsistent or hypocritical position.

      The key is that the change in the standard of proof may serve to prohibit both actions which are abusive, and actionss which are not, and may even be important.

      If you believe that the "not abusive, but now prohibited anyway" actions are numerous enough and important enough, it's entirely consistent to argue that the change in the standard of proof is effectively throwing the baby out with the bath water, even if you don't want anything to do with the bath water.

      Whether or not you're justified in that belief is another question - but it *is* possible to hold that belief, and if you do, this position would seem to follow naturally.

      (The "then throw out or otherwise rein in that small percentage!" argument is an entirely separate question; I don't have any counters for it, and it seems entirely valid to me.)

      reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 18 Apr 2017 @ 8:05pm

    Dear James Schoppman

    "the result will be a net loss to our community"

    That is what the drug dealers are saying as well. The first step is admitting you have a problem.

    reply to this | link to this | view in chronology ]

  • icon
    Ishtiaq (profile), 18 Apr 2017 @ 10:57pm

    They can take your house????

    I live in England so this is a genuine question.
    If they can take your house what do you have to do for them to do so? What if you have a family? Do they just dump you and yours on the street? What happens if you have a mortgage on the house?
    Thank you in advance to anyone who answers

    reply to this | link to this | view in chronology ]

    • icon
      discordian_eris (profile), 19 Apr 2017 @ 2:26am

      Re: They can take your house????

      They can take any property that they can claim was paid for with drug money. If you theoretically paid off a $150,000 house with any putative proceeds from drugs, even a dollar, they can seize it.

      See here for more info on this BS:
      https://fee.org/articles/arizona-takes-asset-forfeiture-to-a-despicable-new-low/

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Apr 2017 @ 7:16am

      Re: They can take your house????

      Apparently they think they can do whatever they please - with impunity. Should we start calling them the "Blue Shirts" ?

      reply to this | link to this | view in chronology ]

    • identicon
      Simon Prophet, 19 Apr 2017 @ 9:35pm

      Re: They can take your house?

      All they need is suspicion. I was found not guilty in a criminal trial and I have no criminal record but the civil courts said that regardless of me having been tried and having been acquitted that I remained a suspect therefore it was right that my home be forfeited. My story is on http://www.simonprophet.com/ Civil forfeiture is the government's legal right to steal. They took my cars, furniture, everything they could get their hands on. My family was kicked out into the street and after we were evicted by the police in 2007 I was still paying the mortgage in 2008.

      reply to this | link to this | view in chronology ]

    • identicon
      Cowardly Lion, 21 Apr 2017 @ 5:42am

      Re: They can take your house????

      I'm not sure if most of the respondees above missed your point about living in England. Also, I'm not sure if you picked up that this thread concerns the US, in particular, Arizona.

      I wouldn't worry; although prosecutors in England & Wales do have asset forfeiture options (only in certain cases), asset seizing is a drop in the ocean compared to the US. Also, if you have a mortgage, your lenders will hold a "charge" on the property with the Land Registry. This HAS to be dissolved before any asset is transferred, even to the government.

      Again, I wouldn't worry.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Apr 2017 @ 2:04am

    Oh, boy. My_Name_Here is going to be absolutely livid when he sees this.

    reply to this | link to this | view in chronology ]

  • icon
    discordian_eris (profile), 19 Apr 2017 @ 2:20am

    I figure that the police unions figured out how to subvert this 3 days after it was introduced. They HATE losing any power that can be wielded by their members. Especially anything involving cash.

    reply to this | link to this | view in chronology ]

  • identicon
    Digitari, 19 Apr 2017 @ 7:28am

    Everyone knows..

    That drug dealers use bearer bonds, and they have no name on them, Cash is like bearer bonds because they have no names on them, so cash must be illegal, and must be put in protective custody "for the good of the children"

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Apr 2017 @ 9:44am

    Slowly these criminals with badges are being reigned in.

    reply to this | link to this | view in chronology ]

  • icon
    JoeCool (profile), 19 Apr 2017 @ 10:38am

    One step forward...

    Only 100,000 more steps needed to no longer be considered a hell-hole.

    reply to this | link to this | view in chronology ]


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