Both House Republicans and Democrats overwhelmingly approved a bill allowing courts to order forfeiture of substitute assets equivalent to property acquired through the crime, directly traceable to property acquired through the crime, or property used to commit or assist in the crime. No state representative voted against the bill.
HB2695 also stipulated that the government may return property to the owner and that parties may file for a restitution or racketeering lien.
House Speaker Pro Tempore Travis Grantham (R-Gilbert), the bill sponsor, explained during the House Judiciary Committee that the intent of the bill was to protect the innocent, such as theft victims from having their stolen property used to pay for lawyers, spent on houses, or given to family members for safekeeping.
Committee Chairman Walt Blackman (R-Snowflake) concurred, adding that despite the legislation appearing to be mere technicality, it would end up helping a lot of people.
Last year, Grantham introduced similar civil asset forfeiture legislation to ensure property seized is evidence of a crime, abandoned, subject to forfeiture, or illegal for the owner to possess. After receiving near-unanimous support of the bill in both the House and Senate, Governor Doug Ducey signed that bill into law. The intent of the legislation was to ensure Arizonans not charged or convicted of a crime don’t experience seizure of their property.
Prior to Grantham’s legislation, Arizona law enforcement could seize property through civil asset forfeiture without charging anyone for a crime, so long as they have reason to believe the property was involved in a crime.
One recent example of this occurred with Melinda Harris, the client of Phoenix-based Goldwater Institute. Police took Harris’ vehicle in March of 2015. Although Harris wasn’t guilty of a crime and faced no charges, police suspected her son of selling drugs and included her car in their investigation because he borrowed it at the time of the suspected crime. Civil forfeiture laws enable police to confiscate property they believe was involved in criminal activity.
Last December, Harris testified to Congress about the reality of civil asset forfeiture, recounting how she was forced to wait six years and ultimately needed the assistance of the Phoenix think tank to recover her car. The Goldwater Institute intervened on Harris’ behalf in early March of last year; days later, the county returned Harris’ car and she was able to give it to her granddaughter as a graduation gift.
During her testimony to Congress, Harris offered insight on an average citizen’s experience with civil forfeiture. According to Harris, she allowed her son to borrow her car in 2015. Her son informed her later that same day that she should come get her car. When she arrived at her car, a group of at least five officers approached and informed her that they were seizing her car on suspicion of its involvement in criminal activity.
“They had no warrant, they didn’t show me any paperwork, I never got a receipt for my car. Basically they told me they were taking my car and that’s what they did,” explained Harris.
Even when Harris went to the police station the next day to follow up on the car, officers wouldn’t give her any information. All they would tell her was that an “ongoing investigation” was underway. Then, Harris explained that about six years passed before she heard anything back about her car, though she stated her son was murdered in 2018.
Police finally sent Harris a letter in October 2020 declaring that the car would be kept unless she answered them and retained a lawyer. By the time the letter arrived, the response window shrunk from 23 days to two weeks. Harris said she couldn’t afford a lawyer to respond, much less one that could put in a request for more time to obtain a lawyer. Additionally, certain options for legal aid weren’t available to her due to the pandemic.
“If it wasn’t for the Goldwater Institute taking my case pro-bono, I wouldn’t have gotten my car back. Fortunately for me they did a great job,” said Harris. “I don’t think people should be allowed to police for profit. I think that they should have a better burden of proof. And if they’re going to do it, they should be held accountable for how the money is spent. I really think it should go back into the community from which it was taken and do some good there. As opposed to lavish parties and trips to wherever.”
Only four states abolished civil forfeiture entirely: North Carolina, New Mexico, Nebraska, and Maine. Although Arizona hasn’t abolished civil forfeiture, the legislature did institute some reforms through Grantham’s legislation. Arizona law now requires that an individual be convicted and that the state must show clear and convincing evidence. It also eliminated constructive seizure, repealed uncontested forfeiture, established post-deprivation hearings for the accused to seek release of property prior to judgment, and set a maximum value of forfeited property. However, the reform does allow officers to seize property without a court process if they have probable cause and believe that a court order delay would frustrate seizure.
When Governor Doug Ducey signed the reform into law, he published a corresponding letter written to Secretary of State Katie Hobbs. He expressed confidence that the reforms would protect constitutional rights while not inhibiting law enforcement’s efforts to handle crime.
“[This law] ensures that law enforcement has the ability to seize property pending forfeiture or if the property is evidence of a crime. It ensures that property being taken is truly connected to criminal activity while innocent persons have the ability to get their property back,” wrote Ducey.
The legal concepts behind civil asset forfeiture can be traced back to common law practices in England. However, the modern form of civil forfeiture used currently is relatively new; its growth spanned over the course of several different administrations and included both parties, from Nixon to Clinton.
Our current leadership was a primary cause for the introduction and expansion of modern civil asset forfeiture. President Joe Biden pushed for increased civil forfeiture for decades, often years ahead of his colleagues when it came to expansion efforts.
In 1981, when Biden was senator, he requested a report from the Government Accountability Office (GAO) on the assets accrued from forfeitures. The GAO report asserted that the government’s total forfeiture revenues weren’t “impressive” compared to the estimated billions that drug traffickers generated annually.
A month after receiving that report, Biden introduced a bill to expand forfeiture radically, by encompassing all profits and proceeds acquired indirectly or directly from crime. That bill never made it out of committee. He proposed this expansion about a decade after the groundwork for modern civil asset forfeiture was laid.
In 1970, about one year before Nixon called for the “war on drugs” officially, Congress passed laws enabling law enforcement to seize assets such as drugs and drug equipment, like the Comprehensive Drug Abuse Prevention and Control Act (Sec. 511), the Organized Crime Control Act (Sec. 844), the Racketeer Influenced and Corrupt Organization Act (RICO, Sec. 1963), Continuing Criminal Enterprise (CCE, or “Kingpin,” Sec. 848) Statute. Eight years later, Congress expanded on the scope of forfeiture to include suspected proceeds of drug trade with the Psychotropic Substances Act of 1978.
Congress expanded forfeiture’s scope again six years after that with the Comprehensive Crime Control Act of 1984, which Biden co-sponsored. On top of the actual illicit substances and equipment, law enforcement were permitted to seize property and assets. Not only could law enforcement seize those — they could keep them. The law also established a program that incentivized state law enforcement to seek forfeitures by offering them 80 percent of the monetary value of seized property and assets.
Then in 1986, Congress permitted law enforcement to seize any property equal to the forfeitable property through the Anti-Drug Abuse Act. Fourteen years later, the Civil Asset Forfeiture Reform Act of 2000 imposed deadlines for property seizure notifications and established recovery procedures for property owners, but it also expanded the list of crimes that fell under civil forfeiture authority.
Harris wasn’t the only one who received her seized property shortly after the Goldwater Institute intervened.
Tucson handyman Kevin McBride also had his car seized by police after his girlfriend was accused of selling three grams of marijuana; a $25 crime. Although the charges were dropped against McBride’s girlfriend, the county refused to return McBride’s car unless he paid them $1,900. If he hadn’t, the county threatened to sell his car.
Mesa contractor Luis Garcia had fundraiser money seized after law enforcement raided his home based on an investigation into his adult son. The money was collected for a youth soccer tournament and in no way connected to any criminal activity.
Just as with Harris, McBride and Garcia were given back their property not long after the Goldwater Institute intervened.
Several state lawmakers spent last Wednesday afternoon attending the 2022 Arizona Farm Bureau AgFest on the lawn of the House of Representatives.
The Arizona Farm Bureau is the state’s largest farm and ranch organization, and serves as the industry’s voice. The Jan. 19 event showcased the state’s $23.3 billion agriculture industry to legislators.
Among those attending was Sen. Sine Kerr, who chairs the Senate Committee on Natural Resources, Energy, and Water.
Kerr is no stranger to the Ag business. She grew up in rural Buckeye and with her husband now owns a large dairy farm.
“Agriculture is essential to Arizona’s prosperity,” Kerr said at the event. “We all depend on the work our ranchers and farmer are doing for our state and country, and I will do my absolute best to always advocate for them at the state legislature.”
Some of the other lawmakers who attended AgFest were House Speaker Pro Tempore Travis Grantham, as well as Reps. Leo Biasiucci, Frank Carroll, David Cook, and Joel John. Senate President Karen Fann was also on hand, as well as Sen. TJ Shope.
Members of the University of Arizona Collegiate Young Farmers and Ranchers, which has its own Arizona Farm Bureau chapter, also took part in the event.
In other Arizona Farm Bureau news, it was announced earlier this month that the organization earned the American Farm Bureau Federation’s New Horizon Award, which honors the most innovative new state Farm Bureau programs.
The New Horizon Award recognized the Arizona Farm Bureau’s partnership with the USDA’s Natural Resources Conservation Service last year to launch a conservation agriculture mentoring program. Stefanie Smallhouse, president of Arizona Farm Bureau, accepted the award during the Federation’s annual convention in Georgia.
Arizona Farm Bureau also won in all four Awards of Excellence categories for demonstrating outstanding achievements in Advocacy, Coalitions & Partnerships, Engagement & Outreach, and Leadership & Business Development.
In a very efficient use of 72 hours, the Arizona Legislature finished a special session called by Gov. Doug Ducey to approve a $100 million supplemental appropriation bill which will fund fire suppression and fire mitigation efforts across the state.
“This will help our brave firefighters, at-risk communities and so many Arizonans,” said Ducey, who is expected to sign the HB2001 on Friday. The bill passed with bipartisan support from 24 of 30 senators and 56 of 60 house members.
Much of the funds are earmarked for the Arizona Department of Forestry and Fire Management (DFFM) but millions will also be spent for inmate and non-inmate labor related to work crews from the Arizona Department of Corrections.
The legislation addresses targeted investments toward the labor and equipment needed for wildfire prevention and preparedness, as well as response and recovery operations. Some of the funding is also earmarked for economic assistance for those displaced by fires or post-fire floods.
Only minimal amendments were made to the proposed legislation which had been sent to lawmakers earlier this week with Ducey’s blessing. One amendment changed a job title while another set a $10 million cap for funds to be used as a last resort for private landowners who experience infrastructure damage related to a fire or post-fire flooding.
That reference to landowners triggered one of the biggest debates in the House after Rep. Andres Cano (D-LD3) sought to include $5 million dollars of “last resort” funds for small business owners, many of whom may suffer losses from wildfires but do not own the land on which their business operates.
Rep. Gail Griffin, who chairs the House Committee on Natural Resources, Energy, and Water, opposed the amendment even though she understood Cano’s concern. The problem, explained Griffin (R-LD14), is that a lot of effort was put into drafting the special session legislation and any extra items lawmakers want to fund should be addressed once back in regular session.
Cano’s amendment died on a voice vote. But he attempted to add the amendment back on via a motion once the main bill made it to the House floor. Cano’s effort failed, but it triggered a roll call vote by each representative.
It was revealed during the roll call that Rep. Travis Grantham (R-LD12) had been given permission by House Speaker Rusty Bowers to vote via text message because Grantham was in an aircraft at the time. A rules challenge was sustained which forced Bowers to disallow Grantham’s no vote on Cano’s motion. It also meant Grantham was unable to cast a vote for the fire suppression bill.
Arizona State Forester David Tenney, who is also DFFM’s director, warned lawmakers during a meeting Wednesday that the destructive Telegraph and Mescal wildfires near Globe are just a glimpse of what is expected to be a severe wildfire season in Arizona. He said last year more than 900,000 acres burned statewide; as of Thursday 300,000 acres have burned in 2021 with months of other fires expected.
One-quarter of the $100 million appropriation will serve a dual role: it will fund several ongoing fire industry positions in addition to 720 ADC inmates who will perform fire fuel or vegetation mitigation at sites throughout the state. Tenney says he hopes the crews can clear 20,000 acres annually.
In addition to Grantham, several lawmakers did not participate in the final vote on the fire bill even though remote “Zoom” voting is allowed. They were Rep. Joseph Chaplik (R-LD23) along with Sens. Lela Alston (D-LD24), Sally Ann Gonzales (D-LD3), Tyler Pace (R-LD25), and Kelly Townsend (R-LD16).
Those who voted against the bill were Sens. Michelle Ugenti-Rita (R-LD23) and Juan Mendez (D-LD26), as well as Reps. Melody Hernandez (D-LD26) and Athena Salman (D-LD26).
Up next for the legislature is trying to pass an 11-bill budget package which had the blessing from Ducey after it was announced Arizona had a nearly $2 billion surplus. The current fiscal year ends June 30 so no new budget would mean a partial state government shutdown.
There has been a stalemate in both chambers related to the three key points of the package: how much to allocate for new spending versus paying down debt, how much of the surplus to refund to taxpayers, and whether or not to transition Arizona to a flat-rate income tax.
To pass any of the 11 bills requires 31 votes in the House and 16 in the Senate. That happens to coincide with the number of Republicans in both chambers, but some members of that caucus have refused at different times to vote for the bills unless changes are made. Everyone is expected back to work Monday in hopes of resolving enough differences to secure the required votes.
Then attention will need to turn to 22 bills which Ducey vetoed when he grew frustrated with the lack of progress on the budget. The House and Senate have reintroduced all 22 bills but have not taken final action to reapprove them. There is also a chance that all or some of the governor’s vetoes could be the subject of a veto override vote.
In what has being characterized by some lawmakers as a “tantrum,” Governor Doug Ducey announced on Twitter Friday afternoon that he has vetoed 22 bills and that he will not sign any other legislation until a budget is passed. In a series of tweets, Governor Ducey characterized the vetoed bills as containing “good policy,” but that he was unhappy that the legislature failed to pass a budget before temporarily recessing for the Memorial Day weekend.
The decision to veto nearly two dozen bills without warning shocked many at the capitol, especially since the Governor was out of town all week at the Republican Governor’s Association meeting in Tennessee.
“It’s unfortunate the governor had to veto 22 bills today including one very important bill dealing with the prohibition of critical race theory indoctrination in government,” Speaker Pro Tempore Travis Grantham told AZ Free News. “This is a direct result of a select few in both the House and Senate, who refuse to do what’s best for the citizens of Arizona and pass a fiscally sound conservative budget without wasteful spending and pork. It’s time to get to work and stay there until we put special interests aside, reduce burdensome taxes on our citizens, and vote for a responsible Republican budget.”
“The Governor’s decision to veto crucial election integrity legislation, as well as, his veto of a bill that would’ve banned taxpayer money from being used to teach the racist, bigoted Critical Race Theory (CRT) ideology is shocking and disappointing for the millions of Arizonans who support these measures,” said Rep. Jake Hoffman.
“The decision to employ strong arm tactics by vetoing over 20 Republican bills, presumably driven by some of his staff and advisors, reflects a fundamental miscalculation regarding the status and progress of the budget negotiations.” Hoffman concluded, “It is deeply concerning that they did not foresee how detrimental indiscriminately vetoing nearly two dozen bills would be on reaching consensus on the budget.”
Capitol insiders told AZ Free News that Governor Ducey has been absent throughout most of the budget negotiations, and most lawmakers have not heard from him or staff about the budget all session. “Not being in town during these final stages of budget negotiations was a real disappointment. If he cares so much, why hasn’t he been here.” said one lawmaker who wished to speak off the record.
The bills vetoed by Governor Ducey today include:
SB1022 unborn child; statutory language
SB1030 guilty except insane; court jurisdiction
SB1074 governance; audits; training
SB1119 attorney general; federal executive orders
SB1121 marijuana; security
SB1127 vehicle speed limits
SB1135 taxes; 529 contributions; ABLE contributions
SB1176 nutrition assistance; benefit match
SB1215 liquor; sales; delivery; identification information
The governor stated in his formal veto letter that the proposed budget agreement “makes responsible and significant investments in K-12 education, higher education, infrastructure and local communities, all while delivering historic tax relief to working families and small businesses.”
Another Capitol insider told AZ Free News, “I don’t think Governor Ducey realizes that his veto rampage likely created more problems than it solved. He wiped out a lot of hard work and expects lawmakers to come back because he now is finally interested in showing up to work after being AWOL all session? A lot of people down here won’t put up with this.”
Negotiations on the budget are expected to resume next week. The Legislature has until June 30th to pass a budget plan before the end of the fiscal year and avoid a government shutdown.
On Wednesday, Governor Doug Ducey signed landmark bipartisan civil asset forfeiture reform legislation intended to ensure innocent Arizonans do not have their property permanently forfeited without a criminal conviction.
House Bill 2810, sponsored by Rep. Travis Grantham, was approved by decisive majorities in the Arizona House and Senate. It becomes law 90 days after the Legislature adjourns.
Currently there is no requirement that the government prove that seized property is connected to a crime, which has resulted in property being taken from innocent people. This legislation protects Arizonans’ rights while maintaining law enforcement’s ability to hold criminals accountable.
The legislation requires that property can only be seized if it is evidence of a crime, has been abandoned, is subject to forfeiture, or it is illegal for a person to possess it. It also includes provisions that ensure that an innocent person has a process to get it returned.