House passes a bill calling for convictions before assets are seized

A MP for the Navajo County Sheriff’s Office pauses near Holbrook, Ariz., November 22, 2016 to find and confiscate drugs along Interstate 40. Navajo County is using forfeiture funds to partially fund its drug task force’s salaries. Photo by Emily L. Mahoney | Arizona Center for Investigative Reporting

Proponents of property reform and criminal justice have come one step closer to their elusive goal of convicting law enforcement and prosecutors before permanently confiscating property allegedly related to a crime.

The House of Representatives was passed House Bill 2810 with a 57-2 vote on Wednesday, with every Republican and most Democrats supporting the legislation. By leaving the House, the bill has cleared the hurdle that made a similar proposal fail last year.

The Senate unanimously supported the iteration of the law for 2020. But before there could be a vote in the House of Representatives, the COVID-19 pandemic struck, forcing lawmakers to take a break. On his return, Democratic lawmakers wanted the legislature to adjourn as quickly as possible and were largely against the idea of ​​passing laws unrelated to the pandemic.

Democrats were also wary of some provisions of the law. Some spoke out against the general concept of requiring a conviction before property can be permanently forfeited, while others said they supported the idea but did not have enough time to study the bill and arguments of the opposition in the haunted atmosphere to sort.

The result was all 29 House Democrats along with a handful of Republicans voted against the measure as the session ended.

Rep. Travis Grantham, who sponsored HB2810, believes things will be different now that these unique circumstances no longer matter. He described reform of civil decay as an issue that “really bridges the partisan divide”.

“It affects all of our voters. It’s not a Democratic or Republican issue, ”said Grantham, a Gilbert Republican. “It is so wrong to take property from people without conviction and then keep it. Again, there is really no party divide to think of, or a partisan issue that would lead me to believe that we could all compete on this issue. “

State law allows law enforcement agencies to sue a civil court for the confiscation of property allegedly linked to a crime. This case operates independently of any related criminal proceedings and it is the responsibility of the owner or any other interested party to hire an attorney to combat the attempted decay. Even if someone hires an attorney to fight the loss, prosecutors only need to provide clear and convincing evidence that the property has been linked to a crime, not that someone is guilty of anything.

Many of these cases are the property of people who have never been arrested, charged, or charged with a crime.

Jenna Bentley, a lobbyist for the libertarian Goldwater Institute, described this Distress of one of the legal clients of your organization. Luis Garcia raised $ 5,300 in 2019 for a youth soccer tournament that Scottsdale Police confiscated when they raided his home as part of an investigation into his adult son. Garcia took out title credits for two cars to pay for the event. Police later returned the money, but only after Garcia lost both cars because he couldn’t make payments on the loans.

Often times, it would cost more to hire a lawyer and fight the loss in court than simply to replace the confiscated property. Kurt Altman, an attorney who frequently deals with forfeiture cases, told the House Criminal Justice Reform Committee that he is telling many potential clients that going to court is neither worth the time nor money.

“Cars worth about five or six thousand dollars are confiscated because a son is selling marijuana from his mother’s car,” Altman said. “My answer is usually, how much is your car worth?” And they say $ 5,000. And I say, “Well, I’m going to cost a lot more to get this back than $ 5,000. I’d save your money, take that $ 5,000 and buy another car. ‘“

The central provision of the bill is that prosecutors must obtain a conviction against someone before permanently taking over their property, which would make Arizona the 20th state to provide such legal protection. Among other things, HB2810 bans the Arizona Attorney General from using money from its anti-racketeering fund to pay salaries to employees, and changes the forfeiture schedule to make it easier for people to challenge the seizure of their property.

The state must announce that it intends to take over someone’s property through forfeiture, and owners or other interested parties currently have 30 days to challenge that forfeiture attempt in court. The government then has an additional 60 days to initiate the loss. Then the case goes to a civil court.

Grantham would like the government to notify the owner of the forfeiture within 60 days of the property being confiscated. The owner or other interested party would then have an additional 60 days to request a hearing to contest the loss. Confiscated property must be returned to the owner within 10 days unless the government files a criminal complaint and initiates forfeiture proceedings or it is intended to be used as evidence.

While law enforcement, law enforcement, and other opponents in the House of Criminal Justice Reform Committee argued last week that calling for a conviction would affect law enforcement’s ability to crack down on large criminal organizations like drug cartels, Paul Avelar, an attorney for the Institute of Justice, has a Conservative legal group that has been advocating forfeiture reform for years found that very few forfeiture cases actually affect such groups.

According to a report Law enforcement agencies at the Institute for Justice in Arizona generated $ 24 million in civil asset forfeiture in fiscal year 2019, the last year for which data is available. The Institute for Justice has found that most forfeitures involve property of $ 1,000 or less. Grantham said the confiscated property included cash, cars, guns, cell phones, three glass cake bowls and a $ 18 Best Buy gift card.

“We have to ask ourselves if this is really a law targeting the cartels. Or is this a law aimed at other people who don’t have the money to fight back because no one can hire a lawyer for a thousand dollars? “Avelar told that Arizona mirror.

According to Avelar, only 3% of the forfeiture proceeds are used for community programs and donations, and only a third of 1% goes to reimbursing victims.

Now 34% is used to pay staff, Avelar said, and another large chunk goes into equipment. Many agencies actually budget based on the expected proceeds from the forfeiture.

“There is a great incentive to profit from the forfeiture as 100% of the proceeds of the forfeiture go to the agency in question,” Avelar told the committee.

The bill continues to meet stiff opposition from law enforcement agencies such as the Maricopa County Law Firm and Navajo County Sheriff’s Office, who argue that their ability to fight large criminal organizations will be compromised if a property seizure conviction is required is.

“This is an invitation to criminal companies and cross-border criminal operations to operate in the state of Arizona,” said Michael Soelberg, Gilbert’s chief of police and president of the Arizona Association of Chiefs of Police. “Depriving criminals and criminal organizations of their illicit profits is a mechanism to disrupt and dismantle those and deter those who pray for financial gain on individuals.”

Sean Mattson, executive director and president of the Fraternal Arizona Police Force, warned that criminals will simply sell their property if conviction is required for the loss. He said he had never seen anything less valuable than a Porsche that had decayed, and that using the decay on something no more than $ 100 would make him “sick”.

“If convicted, these high-profile embezzlers, drug dealers, gun smugglers and people smugglers can conduct a fire sale to dispose of their property and get rid of the charges,” Mattson said.

Navajo District Assistant Attorney Jason Moore told the Criminal Justice Reform Committee that the law enforcement bill was problematic by removing provisions in the law that would empower prosecutors to tackle suspects of the collapse.

Avelar told this mirror that law enforcement will continue to be able to seize property from criminal organizations; and that there are other laws in the state’s criminal laws designed to help victims of theft, fraud, or fraud get their money back. The bill also includes laws that allow “injured persons” who have suffered economic loss as a result of the behavior that caused the loss to seek reimbursement.

And Grantham said that although he is a staunch advocate of law enforcement, property laws must ultimately aim to protect innocent people’s property.

“If we do something in our country that hurts an innocent person just because it gets 10 bad, we are doing it wrong because we are innocent until we are proven guilty in this country,” he said.

Not every law enforcement agency is against HB2810. Attorney General Mark Brnovich opposed last year’s Forfeiture Act but is now neutral due to a change made by Grantham. The 2020 bill would have almost immediately banned the Attorney General’s office from using anti-racketeering fund monies obtained through forfeiture to pay for employees. According to the current bill, this ban would not come into force until 2024.

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