Forfeiture Substitute Assets Approved in Bill Passed by Bipartisan House

by Corinne Murdock | Feb 25, 2022 | News

By Corinne Murdock |

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. 

Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.