In April 2013, Rhonda Cox, who lives in San Tan Valley, Arizona, bought a 2004 Chevrolet Colorado pickup truck that she found on Craigslist for $6,000. A few months later, she had to pay another $1,300 to replace the engine after it threw a rod. Her 20-year-old son, Christopher Clark, who frequently borrowed the truck, installed the new engine on August 1. The next day, Cox got a call from a deputy with the Pinal County Sheriff's Department, who informed her that Christopher had been arrested for stealing a hood and a cargo-bed cover that he had installed on the truck, which now belonged to the cops and prosecutors handling the case.
In theory, Cox could challenge this forfeiture by arguing that she was an innocent owner who had no idea that her property was being used for criminal purposes (which she was). But in practice, as the ACLU of Arizona explains in a federal lawsuit it filed today on Cox's behalf, that truck was gone as soon as the sheriff's department seized it. Cox could not afford to hire an attorney, whose fees probably would have exceeded the value of the truck. So she tried to get her property back on her own. The first step was appealing to the Pinal County Attorney's Office—the very agency that would share the proceeds from the forfeiture with the sheriff's department.
"I am an innocent owner who had no knowledge and could have not reasonably known my 2004 Chevy Colorado would potentially be used in a crime," Cox said in her "Petition for Remission or Mitigation." "I allowed my son to use the vehicle as a way to better himself and get on his feet until such time he could purchase his own vehicle. The vehicle was never intended to belong to him and in fact was intended more for the use of hauling recreational vehicles and for my daughter to use once she obtained her drivers license. If the vehicle is seized it is I, the innocent owner who will be out the value of the vehicle and essentially punished."
Deputy County Attorney Craig Cameron, who in subsequent email correspondence would call Cox "nothing more than a straw owner" of the truck, was unmoved. The next step was to challenge the forfeiture in court. Cox had to pay a $304 fee for the privilege of trying to prove her own innocence, a reversal of the presumption that applies to criminal cases. "Rhonda was caught in a Kafkaesque predicament where, bizarrely, she bore the burden of proving that she was entitled to get the Truck back," says her complaint. "The State did not have to prove that Rhonda did anything wrong—let alone criminal—in order to keep the Truck."
In case that challenge was not daunting enough, Cameron warned her that she would have to pay the county's legal and additional investigative expenses if she lost. "Such fees and costs, if the case had gone to trial, would have exceeded the value of the truck, perhaps many times over," the complaint notes. "On top of authorizing the seizure of her Truck even though she did nothing wrong, the Forfeiture Laws then punish Rhonda for standing up for herself and her property in court." The risk was too much for Cox, so she dropped the challenge.
The ACLU lawsuit argues that Arizona's forfeiture laws violate the right to due process by giving police and prosecutors a financial interest in forfeitures and by erecting barriers that deter owners from seeking the return of their property. It says those barriers also violate the First Amendment right to petition the government.
The ACLU notes that the filing fee and liability for the opponent's legal expenses apply only to property owners, not to the government. "The Forfeiture Laws have created a system in which few people like Rhonda can afford to take the risk of defending their property," it says. Citing records of Pinal County forfeitures from the month in which Cox's truck was seized, the ACLU notes that they often involved property worth less than $1,000, in many cases less than the $304 filing fee. In effect, police are free to steal people's stuff without having to worry about proving it is connected to a crime, as long as they don't steal too much at one time.
Cameron fully understands the intimidating effect of telling owners they may have to pay the expenses that the government incurs in taking their property. "I have started to ask for fees in every case," he wrote in a June 19, 2014, email message to an owner's lawyer. "I suspect you didn't consider attorney fees when you took the case. By asking for fees, I'm reinforcing to the criminal defense bar the risks associated with making a claim in a forfeiture case. I'm sure you may disparage me to your criminal defense brethren for asking for fees, but they will know the risks and rewards better."
By contrast, the risks that police and prosecutors face in pursuing forfeitures are low, while the rewards are high. "All the proceeds from Arizona state forfeitures go to the law enforcement agencies involved in seizing and prosecuting the case," the ACLU notes. As examples cited in the complaint show, Arizona law enforcement agencies, including the sheriff's department and county attorney's office that took Cox's truck, have become alarmingly dependent on forfeiture money, which pays for overtime, retirement contributions, weapons, vehicles, police dogs, home security systems, and even entire divisions, such as the bomb squad, SWAT team, and hazardous materials unit at the Arizona Department of Public Safety. "Arizona's Forfeiture Laws stack the deck against claimants and incentivize law enforcement to maximize their profits at the expense of Arizonans' constitutional rights," the complaint says. "This racket has to stop."