Asset Forfeiture

Arizona Makes It Tougher for Police to Seize People's Money and Stuff for Themselves

Higher threshold required to trigger civil asset forfeiture in bill signed by governor.

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Doug Ducey
Icss/ZUMA Press/Newscom

Governor Goofus, meet Governor Gallant.

Republican Arizona Gov. Doug Ducey has decided not to follow in Republican Idaho Gov. Butch Otter's footsteps and has instead made the correct choice to help protect the property rights of its citizens.

Ducey has just signed into law a bill that should seriously restrict the ability of law enforcement officers in Arizona to abuse the process of civil asset forfeiture as a way of generating revenue rather than fighting crime.

Civil asset forfeiture is a mechanism by which police and prosecutors seize the property and assets of a person suspected of a crime and keep it all for themselves. While this type of asset forfeiture has been sold to communities as a method of fighting crime by denying "bad guys" the financial benefits of their misdeeds, the reality of what actually happens is far different. Seizing assets through a civil procedure instead of a criminal court permits lower evidence of standards. Police have been able to seize the assets of people without ever having to convict—or even charge—citizens with crimes. And because it's a civil process, those who get their property taken don't necessarily get access to a lawyer and often cannot afford one.

The end result has been dramatic increase in police looking for any reason to attempt to seize and keep the property of anybody who ends up in their clutches and try to claim with very little evidence at all a criminal connection. Activism has led to recent legal reform of the rules in many states. Arizona just joined the list.

Like most of the asset forfeiture reforms that have been passed and signed into law, HB2477 doesn't go as far as civil liberty advocates would like: It still won't require a person to be convicted of a crime before police can keep his or her assets. It will, however, increase the standard of proof in order to succeed in seizing somebody's property from the very lax "preponderance of the evidence" to "clear and convincing evidence." This is still a threshold below what is required for a criminal conviction.

Another important reform in the bill: Police will not be able to bypass the state and partner with the Department of Justice for asset forfeitures of property worth less than $75,000. This is a significant rule. The Department of Justice has a forfeiture "equitable sharing" program that allows local police to partner with them for busts and keep up to 80 percent of what they seize. This mechanism allows police to frequently bypass state laws that restrict their behavior and use the much, much looser federal rules. So even when states crack down on forfeiture abuses, unless they do something to restrict these partnerships, little changes. This rule keeps police from defying state law in cases where the amount of property seized is low and the bust is clearly not some big drug dealer or criminal mastermind. The threshold may not seem like much, but studies show that a majority of seizures are of assets much less than $75,000, often in the four-figure range.

The law introduces transparency, reporting, and auditing requirements to better keep track of what happens with forfeitures and also introduces a system where law enforcement agencies will have to actually request money from forfeited assets from their county government instead of having their own funds. Such a system should, if effective, reduce the "profit motive" out of the police's desire to seize everything if there's another layer of government between them and the money.

Only one lawmaker voted against civil asset forfeiture reform in Arizona, but the governor still had to deal with resistance from police and prosecutors. Unlike Otter, Ducey declined to fold under pressure in his signing statement:

"As public servants, we are entrusted with not only protecting public safety but also the rights guaranteed to every citizen of this great state and nation," the governor said in his statement. "Today's important legislation strikes an appropriate balance between enabling law enforcement to do their jobs while upholding civil liberties."

And Ducey brushed aside claims by prosecutors that HB2477 would undermine their ability to fight crime.

"This bill will allow law enforcement to take appropriate action against drug cartels and other criminal enterprises, while ensuring citizens do not have their property seized without due process," the governor said.

The property-rights-protecting lawyers of the Institute for Justice praised the passage of the law as "incremental but important reforms." They've previously blasted Arizona's asset forfeiture laws and are suing the state over the way the system works. That lawsuit is going to continue because they're challenging the complex bureaucratic process that makes it harder for average citizens to resist having their stuff taken. Read more about their response here.

Celebrate, civil libertarians of Arizona. As for you Idahoans out there? Our regrets.