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How did a trip to the convenience store cost one handyman his car and livelihood?

opinion-WEBThe government can take away your property, even if you haven’t been charged with any crime. Tucson handyman Kevin McBride knows this all too well.

McBride’s girlfriend took his Jeep to go get soda and gas. When she didn’t return quickly, McBride got worried and went looking for her. He went to the convenience store and found she’d been arrested for selling $25 worth of marijuana – and his Jeep was being towed away. McBride’s girlfriend was eventually released without any charges, but the police told McBride they’d be keeping the Jeep, auctioning it off, and putting the proceeds toward their police budget.

McBride did nothing wrong, but his Jeep is gone – the car he needs to get around to jobs. Furthermore, his tools were in the confiscated car, and while the police returned many of them, they did end up keeping some.

This sounds like a nightmare, but it’s a true story. And similar incidents occur every day in Arizona and across the country – thanks to a system called civil forfeiture. By using civil forfeiture, the police can take, keep, and profit from your property without even charging you with a crime, much less convicting you of one. And as McBride’s predicament shows, they can do it even if you didn’t know your property was being used in an allegedly illegal manner.

matt-miller-headshot

Matt Miller

Now, it’s true you’re allowed to go to court to try to get your property back or prove you were innocent. But unlike in criminal cases, there is no attorney provided to you. You’ll need to hire one yourself, at a cost of thousands of dollars. And also unlike in criminal cases, the burden will be on you to prove your innocence – the government doesn’t have to prove you’re guilty.

How can this be? Like many laws, civil forfeiture was designed to address one problem and grew to be used in ways its creators never imagined. It started as a way to punish criminals who were beyond the reach of the law either because they were beyond the jurisdiction of the government (like pirates) or because they were part of a vast criminal enterprise (think drug lords). It was never meant to be used to take the Jeep of someone like McBride. But laws are sometimes inartfully drafted, and people who can use those laws to their advantage are clever, and so the use of these laws expands until we find ourselves where we are today – with a multi-billion-dollar nationwide forfeiture machine.

That’s why this week, McBride has informed the government that if they proceed with the forfeiture and take him to court, he will countersue not only to get his Jeep back but also to have Arizona’s civil forfeiture scheme declared unconstitutional. The government shouldn’t be allowed to profit from your property because someone else allegedly used it in a crime. And it should not be able to use a system designed to target drug lords to instead target a handyman. If McBride is successful, that will be a win for all Arizonans.

The Arizona Legislature could also help Arizona property owners by amending state civil forfeiture laws to require a criminal conviction, and by placing the burden of proof on the government in innocent-owner cases, rather than on people like McBride, who did nothing more than loan his Jeep to his girlfriend.

But no matter the means of reforming or repealing these laws, they ought to be dealt with: Arizonans deserve to have their private property protected from civil forfeiture, and we must put a stop to this abusive practice. A trip to the convenience store shouldn’t cost someone their car and their livelihood.

Matt Miller is a Senior Attorney at the Goldwater Institute.

3 comments

  1. So what was the basis for probable cause in the arrest of the girlfriend and why were no charges filed against her?

  2. Excellent opinion piece. Another example of government gone bad.

  3. @David Wright The girlfriend was charged with possession and sale of $25 worth of marijuana. The charges were dropped but Mr. McBride’s vehicle was seized. Perhaps in this case the police decided that prosecuting for $25 worth of marijuana was not worth it but seizing and threatening to auction off Mr. McBride’s vehicle and putting the profits (either the fine they are demanding or what they’d get at an auction) towards their own budget was beneficial.

    What we have here is an example of good intentions gone badly wrong. A sledgehammer of a law is being used to benefit no one except the police who have seized Mr. McBride’s vehicle. I don’t believe that the writers of this bill every anticipated that a law enacted to seize the goods bought through criminal activities had envisaged that it would be used to seize the work vehicle of a handyman who had nothing to do with the crime under question. This is a kafkaesque scenario from which the police and the authorities who let it go ahead will not escape undamaged.

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