Without a single dissent, state senators approved changes Monday in Arizona laws designed to sharply curb the ability of prosecutors and police to seize property.
The measure includes a new requirement that prosecutors must prove by “clear and convincing evidence” that the items they want to seize were involved in criminal activity.
That’s not quite the standard used in gaining a criminal conviction where a judge or jury must believe someone is guilty “beyond a reasonable doubt” before depriving a person of his or her freedom.
But it’s much more than exists now, where all a prosecutor need show is that the “preponderance of the evidence” shows a link between the property and a crime. That is basically a balancing test, meaning all a judge need find is that the evidence shows it’s more likely than not there is a link.
And what makes this change so important is that police and prosecutors can take someone’s property without ever charging the owner with actually committing a crime, much less actually getting a conviction.
But Rep. Eddie Farnsworth, R-Gilbert, who has championed the changes, said the potentially more far-reaching provisions will remove the financial impediment that now exists for people to fight to get back property they believe was unfairly and illegally seized.
Monday’s vote pretty much assures that the measure will reach the desk of Gov. Doug Ducey. The House, which already has given its approval to virtually identical language, simply needs to ratify the changes made in the Senate.
An aide to Ducey said the governor wants to review the bill before making a decision.
What remains to be seen is whether prosecutors seek a veto.
A spokeswoman for Maricopa County Attorney Bill Montgomery declined to comment. And Deputy Pima County Attorney Kathleen Mayer said she has not yet discussed the issue with Barbara LaWall, her boss.
At the center of the issue is that civil forfeiture law. It was designed both to ensure that criminal enterprises do not get to keep the property they acquire from the proceeds of illegal activities as well as to cripple these enterprises by taking away their assets.
But there have been increasing concerns that police and prosecutors are padding their finances by going after property in minor situations, counting on people to give up without a fight because of the financial risks of losing.
Farnsworth cited the example of a family facing loss of a vehicle because a child had “an ounce of weed on the seat.”
“You have the risk if you lose in challenging that,” he said.
“If you lose, you have to pay your fees and the government’s fees,” Farnsworth explained. “But if you win, the government doesn’t have to pay your fees.”
Farnsworth said this gamble was often not worth taking for property owners
“They could rack up $20,000 between the two for a $3,000 car,” he said.
HB 2477 reverses both of those.
If the measure becomes law, the government pays the fees of a challenger who wins in court. And there’s no longer a danger of winding up broke after an unsuccessful court fight.
The measure also contains what Farnsworth said is some accountability to ensure that seized property and the money made from selling off items is properly used.
He said oversight is lax, as shown by the current investigation by the FBI into the Pinal County attorney and sheriff’s office. That follows various complaints that the two elected officials — both since replaced — were using proceeds for improper purposes, including in one case a mailer on behalf of Sheriff Paul Babeu that went out to voters shortly before the Republican congressional primary in which he was a candidate.
And Farnsworth also cited the arrest of Christopher Radtke, the former chief deputy for the Pima County Sheriff’s Office. Radtke, originally indicted on multiple money laundering counts having to do with the embezzlement of $500,000 of forfeiture funds, eventually pleaded guilty to multiple misdemeanors, a deal that allowed him to keep his pension.