August 20, 2020
By Matt Miller
When the government steals an innocent man’s Jeep and demands $1,900 to return it, you really can’t call it anything but government theft. That’s what Arizona’s civil asset forfeiture scheme is all about—and the Goldwater Institute is taking action to end the injustice.
Take the case of Tucson resident Kevin McBride, a handyman who relies on his Jeep to earn a living and who has literally been left stranded by the government. Back in May, Kevin’s girlfriend stopped by his job site and asked if she could help him cool off by getting him a soda from a local convenience store. Because she had no other way to get there, she took his Jeep and he went back to work. When his girlfriend didn’t return, Kevin started to worry, so he got a ride to go and look for her. When he arrived at the convenience store, his Jeep was being loaded onto a wrecker by the police. He saw his only method of transportation being hauled away—along with his livelihood—and he didn’t understand why.
A police officer on the scene gave Kevin a handwritten phone number to call for information. Kevin called again and again. He called for three weeks before anyone answered, and when they did, Kevin heard crushing news: The District Attorney was holding his Jeep as evidence of a $25 crime they said his girlfriend committed (the alleged sale of three grams of marijuana). Did it matter that they had dropped all charges against her? No. They were keeping the Jeep using civil forfeiture, even though Kevin had done nothing wrong. Kevin needs the Jeep to do his work as a handyman, so he is effectively out of work, too.
To add insult to injury, after Kevin made a claim for the Jeep, the Pima County Attorney’s Office told him he would have to pay $1,900 to get his Jeep back. There was no explanation why. That was just an amount the government had chosen. Kevin could pay it, or he could watch his Jeep be sold—with police keeping the proceeds.
This is terrible, but it is also all too common. In Arizona, as in most states, someone does not need to be convicted of a crime before their property can be forfeited. The government can still take and keep your property without charging or convicting you of a crime. All they need to do is allege you committed a crime, and then the burden falls on you to hire a lawyer and go to court in an effort to prove otherwise. Even though forfeiture was meant to be used to target the property of major criminals—like drug kingpins—it is predominantly used against the little guy, even when he has done nothing wrong.
Despite modest reforms to the state’s laws in 2017, Arizona still has a problem with civil forfeiture abuse. The government just needs to prove by “clear and convincing” evidence that a crime was likely committed using the property. This is a far lower burden than the “beyond a reasonable doubt” standard that applies in actual criminal cases.
And for innocent owners like Kevin, it is even worse. He must hire an attorney (although here Kevin is represented pro bono by the Goldwater Institute), go to court, and prove a negative—that he did not know that his girlfriend was using the Jeep to allegedly sell marijuana. This burden is unconstitutional. The burden should be on the government to show that Kevin was involved.
Furthermore, let us take a step back for some perspective on what happened here. Kevin’s girlfriend allegedly used the Jeep to sell about $25 worth of marijuana to an undercover police officer. Tucson now claims the right to forfeit Kevin’s Jeep—which is worth about $15,000—and keep the money. This, too, is unconstitutional. Both the U.S. and Arizona constitutions protect us against excessive fines. And if the forfeiture of a $15,000 Jeep over $25 worth of marijuana is not excessive, then it is difficult to imagine what would be.
Arizona had a chance to strengthen its forfeiture laws again this year, but the effort was derailed at the last minute by incorrect claims by opponents of reform. And so the abuses continue. That’s why Kevin has joined with the Goldwater Institute to inform the government that if they proceed with the forfeiture and take him to court, he will countersue not only get his Jeep back, but also to have Arizona’s civil forfeiture scheme declared unconstitutional. If he is successful, it will be a victory for all Arizonans.
Matt Miller is a Senior Attorney at the Goldwater Institute.