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.
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.