A federal judge on Aug. 18 gave the go-ahead for a broad-based challenge to Arizona statutes that allow police and prosecutors to profit from items they seize.
In an extensive ruling, U.S. District Court Judge Diane Humetewa said there was enough evidence in the lawsuit, filed in 2015, to give attorney Jean-Jaques Cabou and the American Civil Liberties Union a chance to prove that the laws are unconstitutional. They claim the statutes provide an “improper financial motivation” for law enforcement to take cash, homes, cars and other property.
The case itself surrounds the complaint of San Tan Valley resident Rhonda Cox.
She said her rights were violated when Pinal County sheriff’s deputies took her truck and the Pinal County Attorney’s Office sold it based on the activities of her son. And Cox charged that Arizona law erected barriers to her challenging the seizure, including requiring her to pay a filing fee just to get into court.
But Humetewa said the evidence presented so far show this is not a local issue.
“Many state agency departments are entirely funded through forfeiture money,” the judge wrote in her
“For instance, the Arizona Department of Public Safety’s bomb squad, S.W.A.T. team, and
hazardous materials unit rely entirely on forfeiture money,” Humetewa said. “Other agencies use their
forfeiture money to pay overtime, retirement contributions of employees, and department
vehicles to name a few.”
And she said some agencies are funding “pet projects,” noting allegations by Cox that funds from seized property paid for the personal home security system of former Pinal County Attorney Lando Voyles.
What that means is if Cox wins her case and Humetewa voids the civil forfeiture statutes, the impacts will be felt not just in Pinal County but statewide.
Cabou said that the changes in forfeiture laws adopted by legislators earlier this year did resolve some of the complaint.
For example, it is no longer necessary for those whose property is seized to have to pay a filing fee to challenge the action. And property owners who lose in court no longer face the threat of having to pay not only their own legal fees but those of the government, both provisions that provided a clear disincentive for people to try to get their property back.
But Cabou said that still leaves the questions of whether Arizona’s forfeiture statutes are fair.
“The core of the case was always the policing for profit incentive,” he said.
“The center of the lawsuit was always about the fact that police in Arizona and prosecutors in Arizona have a direct financial incentive to seize as much property as they can without regards to due process,” Cabou said. “That part of the lawsuit will continue.
The Attorney General’s Office, which tried to have her case thrown out, declined to comment. There was no immediate response the attorney representing the Pinal County sheriff and attorney.
The case stems from the fact that Cox’s son, Chris, had been arrested in 2013 after deputies determined that the hood and a cover on the back of her pickup truck, which he was driving, had been stolen. Based on that, deputies seized the truck.
Cabou said that Cox herself was unaware of the stolen items and therefore, under the terms of the law, entitled to have the truck returned. That did not happen and the truck and its contents eventually were sold.
Under Arizona law, neither police nor prosecutors need charge anyone with a crime, much less gain a conviction, in order to seize property.
Instead, the law at the time required only that prosecutors show by a “preponderance of the evidence” that the property was linked to a crime. That essentially is a 51-49 standard, with a judge needing to believe that the allegations are more likely true than not.
One of the new reforms changes that to a requirement for “clear and convincing evidence.” But that still falls short of the standard for criminal cases where prosecutors must convince a court “beyond a reasonable doubt” that someone is guilty.
Cabou said the process remains flawed.
“Rhonda was caught in a Kafkaesque predicament where, bizarrely, she bore the burden of proving that she was entitled to get the truck back,” he argued in his legal papers. “The state did not have to provide that Rhonda did anything wrong — let alone criminal — in order to keep the truck.”
What convinced Humetewa to let her proceed with her challenge is that link between those who take the property and those who benefit.
“Thus, defendants are ‘incentivized’ to rigorously enforce forfeiture laws,” the judge wrote. And she said the amount that police and prosecutors are allowed to keep of what they seize — in some cases 100 percent — clearly make the question of the fairness of the process significant.
Separately, the judge rejected arguments that Cox, in challenging the laws that led to the seizure of her truck, was somehow trying to get Humetewa to overturn the state court ruling that took it.
“The legal wrong asserted in plaintiff’s complaint is not that the state court erroneously determined her truck was subject to forfeiture, but rather, the continued enforcement of the forfeiture statutes plaintiff alleges are unconstitutional,” the judge wrote.
The original lawsuit named Voyles as Pinal county attorney and Paul Babeu as sheriff, but in their official capacity. That means the defendants are now County Attorney Kent Volkmer and Sheriff Mark Lamb, who were elected in 2016.
A hearing on what happens next in the case is set for next month. No date has been set for a trial.