Rebuffing prosecutors and sheriffs, Gov. Doug Ducey today signed legislation to make it more difficult for them to seize property.
“Reforms have been needed in this area for some time,” the governor said in a prepared statement.
The measure received nearly unanimous support. Only Rep. Becky Nutt, R-Clifton, voted against the bill.
The new law will require prosecutors to provide “clear and convincing evidence” to a judge that property they want to seize is connected to criminal activity before they can seize it. That means either it was used as part of a crime or that it was acquired with proceeds from criminal activity.
That is more rigorous than the current standard of allowing seizure based on “preponderance of the evidence.” That is the lowest of all standards and means only that it is more likely than not the property is linked to a crime.
Rep. Eddie Farnsworth, R-Gilbert, who crafted the changes, said the new standard is appropriate as there is no requirement that someone be convicted of a crime – or even charged – before prosecutors can try to seize property.
The change, which takes effect later this year, also will remove some disincentives that now exist for people who contend their property was wrongly seized from challenging the government.
Under the current law, property owners are responsible for their own legal fees, even if they win. Farnsworth said that means it makes no sense for them to hire an attorney for $20,000 to recover a vehicle that might be worth just half that much.
The other change in law eliminates the possibility that a property owner who fights forfeiture and loses in court could be on the hook for the government’s legal fees.
Prosecutors and sheriffs from throughout the state had sought a veto.
“If HB2477 is enacted, the Mohave County area will suffer because of an overreaction to the misdeeds of a very small percentage of others,” James Schoppman, the chief deputy county attorney, wrote in a letter to the governor. “The result will be a net loss to our community and a net gain for drug traffickers.”
Ducey, however, said he sees the issue differently.
“As public servants, we are entrusted with not only protecting public safety but also the rights guaranteed to every citizen of this great state and nation,” the governor said in his statement. “Today’s important legislation strikes an appropriate balance between enabling law enforcement to do their jobs while upholding civil liberties.”
And Ducey brushed aside claims by prosecutors that HB2477 would undermine their ability to fight crime.
“This bill will allow law enforcement to take appropriate action against drug cartels and other criminal enterprises, while ensuring citizens do not have their property seized without due process,” the governor said.