Arizona Court Deals a Blow to Government Abuse

2018
05.08

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Few people have ever heard the term “civil forfeiture,” but if you’ve ever been affected by it, it’s something you never forget. This law, which has its roots in pre-colonial England essentially allows the government to seize and keep any property that was used in or received from the commission of a crime.  The law is designed to be a deterrent for crime by removing one strong incentive to commit a crime.  Under these laws, federal and state governments have seized billions of dollars from drug cartels.

While the law’s origins may make sense, scrutiny to the way it has evolved over the years has led to shocking findings of government abuse. A Michigan man was traveling through Nevada on his way to begin a new life in California.  He was carrying $2400 he had borrowed from his dad for rent.  A patrolman pulled him over for a minor traffic violation, then seized the cash because the officer suspected he was going to California to buy drugs.

His evidence?  Based on his “training and experience” it is common for people to travel through Nevada to buy drugs with cash.  Apparently, the absurdity of traveling across the country to buy $2400 worth of drugs that could be found in virtually every city in America never occurred to the officer.

Or consider the case of Gerardo Serrano, who was traveling across the border to visit family members in Mexico.  When Customs agents saw him taking pictures near the border, they demanded the passcode to his phone.  When Serrano requested that they provide a warrant, they pulled him from the truck, searched it and found a .380 pistol and five bullets.  Accusing him of “smuggling arms or munitions of war,” the feds then seized his truck.

Unfortunately, the deeper one looks into civil forfeiture laws, the more examples of abuse they find.  To make matters even worse, there is virtually no oversight into where money obtained from civil forfeiture is spent.

Surely it goes to bolster the needs of the police force and increase public safety, right?  Wishful thinking.  The Milwaukee sheriff’s Department used seized funds to fly 50 Deputies to Disneyland.  The Montgomery County District Attorney in Texas bought a margarita machine.  In Worcester County, MA, the District Attorney thought a good use of the funds was a Zamboni machine: yes, the boxy vehicle that refreshes the ice in hockey rinks before games and between periods.

How did civil forfeiture take such an ugly turn, and how could so many abuses occur?  Surely there must be some sort of judicial oversight of this process, right?  Sort of.

The law does allow for someone to challenge the taking of their property in court.  However, the process for doing so is so confusing and difficult that most people lose their chance to challenge the seizure on legal technicalities.  In Maricopa County, judges routinely reject requests for a hearing, merely because the claimant didn’t sign the hearing request document or if it is submitted a day late.

Judges’ rigid adherence to technical rules means that if someone wants to make sure the process is done correctly, they usually have to hire an attorney, which is oftentimes more expensive than the seized property is even worth.

Even worse, many people never even find out that the property is going to be kept by the government and are never told they have a right to challenge the seizure.  Historically in Arizona, the law merely required that a notice is sent to the last known address.  Even if the mail is returned “undelivered,” the government could keep the property without any scrutiny whatsoever from a judge.

Fortunately, that changed in February of 2018, when an Arizona Appeals Court ruled that when the State has good reason to know that the person whose property was seized didn’t get notice, they cannot move forward in permanently depriving the person of their property.  There’s still a long way to go to make these laws just, but this case was certainly a step in the right direction.

Do you have questions about property that was recently seized?  Contact us to discuss the facts of your case and see if we can help.