August 12, 2015

Arizona's crazy abusive civil forfeiture law

By Jonathan Wood Attorney

Many states throughout the country have terribly abusive and unconstitutional civil asset forfeiture laws. These laws unfairly stack the deck against innocent property owners by presuming their property is guilty of a crime and forcing the owner to prove innocence to get it back. But Arizona goes one step further. Any property owner that tries to defend her constitutional rights but fails to overcome this unfairly burdensome standard will be forced to pay the state’s investigation costs and attorney’s fees. Arizona literally adds insult to a constitutional injury.

The way that these laws normally work already shocks the conscience. The police can take someone’s private property — homes, cars, or (often) cash — on suspicion that it was used in a crime and refuse to give it back until the property owner proves her innocence. The money that police obtain through this process is often used however they want. It’s a slush fund that has increased police salaries, paid for lavish trips, purchased sports cars, and — and this is as real as it is sublime — to buy a margarita machine. The situation is so bad that, in many parts of the country, police routinely ask people whom they stop how much money they’re carrying:

Obviously, this is awful. It’s wildly unfair to take innocent people’s private property then keep it because they can’t prove a negative (that they are innocent). But Arizona manages to be even worse.

An Arizona statute punishes any property owner who attempts to defend herself but fails to overcome all of these absurd barriers by sticking her with the government’s legal bills. Fee shifting is relatively common in suits with the government. For instance, under federal civil rights laws, the government has to pay the plaintiff’s legal fees when she succeeds in defending her constitutional rights.This makes sense. A citizen whose constitutional rights have been violated shouldn’t have to incur hundreds of thousands of dollars in legal fees to vindicate rights that protect all of us.

But in the bizarro world that is Arizona civil forfeiture, a property owner who vindicates her rights only gets her property back. She has to cover her own legal bills. But if the government gets away with violating her rights, the innocent (and, let’s face it, often poor) property owner has to then pay the government’s costs. That’s insane. There’s only one reason to have a one-way fee shifting arrangement like this. It’s so punitive that it will coerce property owners into abandoning their cases challenging atrocious government action.

Our friends at the ACLU have challenged this ridiculousness as unconstitutional.

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