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Case against civil forfeiture law continues even though couple gets seized car back

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Navajo County has given up on its bid to seize the vehicle of an elderly Washington couple.

But it won’t end the legal bid to void the state forfeiture laws that allow prosecutors to seize cash and property without having to prove a crime was committed.

In a filing in Navajo County Superior Court, Deputy County Attorney Jason Moore insisted his office had the legal right to take the 2012 VW Jetta belonging to Terry and Maria Platt. They had loaned the vehicle to their son, Shea, who was arrested on Interstate 40 near Holbrook earlier this year after the Department of Public Safety said it found a quantity of marijuana and more than $31,000 in cash.

Moore said in the legal papers, though, his office decided to return the vehicle “as a matter of ensuring a basic, just result.’’

Attorney Paul Avelar of the Institute for Justice said that ends one lawsuit, the one the couple filed to recover the vehicle. But he said the Platts are going to pursue their separate claim that the county violated their civil rights in taking their car without any evidence linking them to any crime.

More significantly, that lawsuit asks a judge to declare the state’s civil forfeiture statutes unconstitutional, a move that, if upheld by appellate courts, could put a permanent end to the process statewide.

No one at the Navajo County Attorney’s Office would comment.

On a surface level, Avelar said prosecutors illegally ignored the couple’s legal objections to taking the vehicle and their claims they had no knowledge or culpability for anything their son did. The decision by Moore to drop the county’s claim solves that part of the problem.

Avelar said, though, that one legal issue remains.

“That says you have violated, are violating and threaten to continue to violate our rights,’’ he said. Avelar said he wants a judge to declare that the couple’s civil rights were violated and order a nominal award of $1 “for the harms we have already suffered.’’

But the real key is Avelar’s bid to have the whole civil forfeiture law declared unconstitutional.

It permits a prosecutor, working with police, to take property linked to a crime. But there is no requirement that the person from whom the property was taken actually be charged with breaking the law, much less that there be a conviction.

The law does allow individuals to contest the seizure. But the burden is on them to file the lawsuit, pay the filing fees and, if they can’t figure out the legal system on their own, hire an attorney.

Avelar said any resulting court fight essentially requires the property owner “to prove your own innocence in court,’’ versus requiring the government to prove its case.

He said it’s legally irrelevant that the county has decided to give back the vehicle.

“Returning the car now does nothing to change the fact that their rights have already been violated,’’ Avelar said. And he said it would undermine the whole system of justice if prosecutors could not be held accountable for their bad acts simply by reversing course.

“When the government gets caught with its hand in the cookie jar, it can’t pull its hand back and then that’s the end of it,’’ Avelar said. More to the point, he said the fact the county gave back the couple’s car does not prevent it from taking similar actions in the future, actions Avelar contends are illegal.

A similar lawsuit is playing out in federal court in Phoenix with the American Civil Liberties Union over the decision by Pinal County prosecutors and the sheriff’s office to seize a truck that its owner says she knew nothing about alleged illegal activity by her son. Here, too, the attorneys are seeking a court order voiding the state’s civil forfeiture laws.

In both cases the lawyers claim one flaw in the statutes is they give prosecutors an improper financial incentive to take property as they get to sell it and use the proceeds.

U.S. District Court Judge Diane Humetewa has yet to rule on a motion by Pinal County officials to throw the case out.

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