The Arizona legislature passed a bill yesterday that would make the state the 16th* in the country to require a criminal conviction before law enforcement can take property under civil asset forfeiture.
By a vote of 29–1, the Arizona Senate passed House Bill 2810, which would require police and prosecutors to obtain a conviction in most civil forfeiture cases. The bill passed the Arizona House in February, and it now heads to Republican Gov. Doug Ducey's desk for his signature.
Among other provisions, the legislation will also require the government to prove property was being used in connection to illegal activity, strengthen notice requirements when property is seized, and ban the use of roadside waivers that police use to get people to sign over their property.
Under typical civil asset forfeiture laws, law enforcement can seize property suspected of being connected to criminal activity, even if the owner hasn't been charged or convicted of a crime.
But Arizona is now on the verge of joining 15 other states that require criminal convictions before property can be forfeited. More than half of all states have passed some form of civil asset forfeiture reform over the past decade because of civil liberties concerns, and three states—New Mexico, Nebraska, and North Carolina—have abolished it entirely.
Law enforcement groups argue that asset forfeiture helps disrupt drug trafficking and organized crime by targeting their ill-gotten proceeds.
But civil liberties advocates have been uncovering abusive cases of asset forfeiture for decades, with police seizing innocent people's property on the flimsiest of suspicions. Groups like the Institute for Justice, a libertarian-leaning public interest law firm, say there are too few due process protections for property owners and too many perverse incentives for police, whose budgets often padded with forfeiture revenues.
"Civil forfeiture threatens everyone's property and due process rights," says Paul Avelar, managing attorney for the Institute for Justice's Arizona office. "The government can take your car, your home, and your life savings without ever charging you with, much less convicting you of, a crime. HB 2810 makes important reforms to Arizona's forfeiture laws to protect innocent property owners from government abuse."
The Institute for Justice filed an appeal earlier this month in the Arizona Court of Appeals on behalf of Jerry Johnson, a North Carolina man fighting to get back $39,500 in cash after police in Phoenix, Arizona, seized the money from him at an airport on suspicion that it was drug money. Johnson was never charged with a crime.
Although Arizona enacted reforms in 2017 by the state legislature raising the standard of evidence in forfeiture cases, the judge in Johnson's case ruled that because of circumstantial evidence offered by prosecutors—an old criminal record, buying a last-minute ticket with a quick turnaround, his nervous appearance in the airport, having three cell phones, and the alleged odor of marijuana on the cash—Johnson hadn't established a legitimate interest in the cash.
"Jerry did nothing wrong by flying to Phoenix with $39,500 in cash, yet law enforcement is trying to take his money forever without ever charging him with a crime,"Avelar says. "His case is a clear example of how civil forfeiture is abusive and why reforms like HB 2810 are so desperately needed in Arizona."
In another case, Tucson handyman Kevin McBride was stranded when police seized his Jeep using civil forfeiture laws and demanded $1,900 to return it. After the Arizona-based Goldwater Institute threatened to sue, McBride's Jeep was returned.
*CORRECTION: The original version of this article stated incorrectly that Arizona would become the fourth state to require a conviction for civil asset forfeiture, effectively abolishing the practice. In fact, three states have abolished civil asset forfeiture completely, while 15 require convictions to forfeit property through the civil forfeiture process. This story has been updated to reflect this.