Monday, July 27, 2015

Challenging Civil Forfeiture In Arizona

The American Civil Liberties Union filed a suit against the Pinal County, Arizona sheriff’s department on behalf of Rhonda Cox. Ms. Cox bought a used pickup truck, paying cash. She then leant the truck to her son, who went shopping. While he was shopping, deputies contacted him, concluded that the hood and tonneau cover on the truck were stolen parts, and impounded the vehicle. 

[Related: KGOU's Kate Greer on Oklahoma's CAF debate
for All Things Considered]

Ms. Cox asked the sheriff’s department to return her vehicle, citing her status as an ‘innocent owner.’  According to Cox, the police proceeded to continue to detain and interrogate her son, and also engaged in implicit and explicit threats if she pursued recovering her vehicle. According to Cox, law enforcement also strongly suggested  to Cox that she urge her son to confess.

Instead, Cox went and got some lawyers and decided to make a fight of it. Citing First, Fourth, Fifth, and Fourteenth Amendments grounds, private counsel and ACLU lawyers are demanding the return of her property, arguing that the Arizona civil forfeiture statute is unconstitutional.
Reading through the suit, the logic of each component of the complaint is as follows:

According to the ACLU, the law violates the due process guarantees under the 5th and 14th Amendments (the 14th Amendment incorporates those limitations on Congress’s ability to infringe on rights and liberties and applies them also to state legislatures).  Specifically, the system Cox confronted required her to prove that she had done nothing wrong, while also creating a financial incentive for law enforcement to seize and forfeit her property (at present, the agencies being sued in Arizona are holding about $70 million in forfeited assets in their accounts). Put another way, the agency benefited by intimidating her and utilizing a system of taking her property without proper due process.

The ACLU described this in a very ACLU fashion thus:
Rhonda was caught in a Kafkaesque predicament where, bizarrely, she bore the burden of proving that she was entitled to get the Truck back. The State did not have to prove that Rhonda did anything wrong—let alone criminal—in order to keep the Truck.
 For all of you who didn’t take a course on the novels of the German writer Franz Kafka, a Kafkaesque story is known for having a ‘nightmarishly complex, bizarre, or illogical quality.’ But the constitutional offense goes further, according to the ACLU, because Cox is threatened with bearing all the court costs of her litigation to recover her property if she loses.

Cox’s First Amendment rights are violated because she is required to pay a $304 fee just to engage in contesting the right to recover her property.  

And, the Fourth Amendment rights of Cox are allegedly violated because the seizure of her property without due process and without an untainted process to engage in recovery constitutes an unreasonable seizure which violates her property rights.

It’s a tall lawsuit. And it is likely coming to a court in Oklahoma in the near future. The reason? Local law enforcement is inadequately funded, and relies on forfeited assets to engage in a rather expensive battle against illegal drug trafficking – where more seized assets are found. But the innocent get caught up in this process too – and the rights to due process are denied to them.

But, also, in both Arizona and Oklahoma, there is growing and emerging evidence of the abuse of forfeited assets. Some law enforcement agencies and district attorneys offices are not using these forfeited assets to fight crime. In some instances, these assets are being converted to personal use by law enforcement.   It’s wrong. It undermines the integrity of the law enforcement community and  confidence in prosecutors, neither of which  receive sufficient budgetary support from lawmakers to do the job.

Reform civil asset forfeiture by introducing due process. Reform it by clarifying policies to govern the taking of personal property. And give law enforcement the monies needed to do their work without the taint of unconstitutional action and the temptation to steal from the till.