Tucson handyman Kevin McBride was hard at work one Friday last May when his girlfriend offered to get him a cold drink from a convenience store. She took his Jeep, his sole means of transportation and the basis of his livelihood. Then the cops took his Jeep, and local prosecutors are now demanding a $1,900 ransom before he can get it back.
This sort of shakedown would be clearly felonious if ordinary criminals attempted it. But as McBride discovered, it is legal under Arizona's civil asset forfeiture law. The cops said McBride's girlfriend had used his Jeep to sell a small amount of marijuana to an undercover officer for $25. Although the charges against her were dropped, the Jeep is still being held as a party to that alleged offense, and McBride has to pay for the privilege of getting his property back.
"They're extorting money from me," McBride says, "and I didn't do anything. I don't know how they can do that. You know, we don't live in a free country anymore, because that's not freedom."
Ordinarily, someone in McBride's position would be inclined to give in, since challenging the forfeiture would cost thousands of dollars in legal fees, and there would be no guarantee of winning. But the Goldwater Institute is representing McBride pro bono, arguing that Arizona's system of legalized theft violates the Fifth Amendment's guarantee of due process and the Eighth Amendment's ban on excessive fines.
When he began to wonder what was keeping his girlfriend, McBride hitched a ride to the convenience store, where he was dismayed to find police loading his Jeep onto a flatbed truck. When he asked the cops what was going on, he was handed a phone number to call for an explanation. He tried the number for three weeks before someone answered, which is when he found out that his Jeep had been seized because of the alleged marijuana sale.
Under civil forfeiture law, neither the fact that McBride was not accused of a crime nor the fact that the charges against his girlfriend were dropped made any difference. Officially, the Jeep itself is accused of participating in criminal activity. If McBride could scrape together the money for a lawyer to challenge the forfeiture, the government would have to show by "clear and convincing evidence" that the Jeep was involved in a penny-ante marijuana sale.
That is actually an improvement on the standard that applied before Arizona amended its forfeiture law in 2017, when "a preponderance of the evidence" (any probability greater than 50 percent) was enough. But the current standard is still a much lighter burden than proof beyond a reasonable doubt, the rule that applies in criminal cases. And unlike criminal defendants, innocent owners like McBride have no right to court-appointed counsel, which makes it much easier to pressure them into "mitigation" agreements like the one proposed by the Pima County Attorney's Office.
"An outright return of the vehicle is inappropriate in this case," Deputy County Attorney Kevin Krejci asserted in an August 11 letter to McBride. Instead, "the state offers the following mitigation of forfeiture," Krejci wrote, saying the Jeep "would be released from forfeiture for $1,900.00." But "if we cannot agree on this mitigation, then the state will proceed with a Declaration of Forfeiture." Since Arizona assigns 100 percent of forfeiture proceeds to the law enforcement agencies responsible for the seizure, this proposal is tantamount to demanding a bribe for the return of stolen property.
Arizona, like the federal government, allows owners of seized property to argue that they should get it back because they were unaware that it was being used for illegal purposes. But then the burden is on them to show they "did not know and could not reasonably have known" about that illegal use. In other words, property owners like McBride are presumed guilty unless they can prove otherwise. So much for due process.
The Goldwater Institute also argues that the forfeiture of McBride's Jeep violates the Excessive Fines Clause, which the U.S. Supreme Court last year ruled applies to civil forfeiture cases. McBride says his Jeep is worth about $15,000, or 600 times the value of the marijuana that his girlfriend was accused of selling.
"If the forfeiture of a $15,000 Jeep over $25 worth of marijuana is not excessive," says Goldwater Institute senior attorney Matt Miller, "then it is difficult to imagine what would be." The government presumably will argue that the $15,000 loss is perfectly reasonable given Arizona's draconian penalties for selling small amounts of marijuana, which include a maximum prison term of nearly four years and a maximum fine of $150,000 for amounts less than two pounds.
"In Arizona, as in most states, someone does not need to be convicted of a crime before their property can be forfeited," Miller notes. "Even though forfeiture was meant to be used to target the property of major criminals—like drug kingpins—it is predominantly used against the little guy, even when he has done nothing wrong."
In this case, the little guy is taking a stand against the government's extortion. "Kevin has joined with the Goldwater Institute to inform the government that if they proceed with the forfeiture and take him to court, he will countersue not only get his Jeep back, but also to have Arizona's civil forfeiture scheme declared unconstitutional," Miller says. "If he is successful, it will be a victory for all Arizonans."
[This post has been revised to correct Arizona's maximum prison term for selling small amounts of marijuana.]