According to the Institute for Justice’s grading of the states on how bad they are when it comes to civil asset forfeiture, Arizona is among the worst, getting a grade of D. (Only five states are worse, with D-minus grades.)
One reason why Arizona deserves its bad grade is the fact that its law attempts to deter individuals who have had their property seized from trying to recover it. Specifically, property owners who decide to fight back are liable for repaying the state for its attorneys’ fees if they lose.
A recent case, Cox v. Voyles, et al arose out of an asset seizure and illustrates the problem that the state’s intimidating law on attorneys’ fees presents.
Rhonda Cox has lived in Arizona for ten years. In April 2013, she purchased a used pickup truck, which she titled in her name and on which she carries the insurance.
She often allowed her son, Chris to use her truck and in August of 2013 he had driven it to a store. Upon returning to the vehicle, Chris was confronted by Pinal County sheriff’s department deputies who were investigating the theft of a tonneau cover (which goes over the back of a pickup truck) and a truck hood. The deputies concluded that the cover and the hood on the Cox truck were the stolen items and therefore put Chris under arrest.
And of course, they confiscated the truck under Arizona’s civil asset forfeiture statute.
Chris called his mother and she quickly went to the scene, where she found one deputy remaining, guarding her truck. She explained that it belonged to her and asked how she could get it back. The deputy smugly replied that she would never be getting it back. When Rhonda protested that she had nothing to do with the alleged crime, the deputy merely said, “Too bad.”
Subsequently, the sheriff’s department initiated seizure proceedings against the truck. Rhonda was unable to afford an attorney and attempted to fight it on her own. That is when she learned about Arizona’s intimidating law about attorneys’ fees in asset forfeiture cases.
In an email, deputy Craig Cameron told her that she was merely a “straw owner” who had no standing to contest the seizure, that she had a duty to ensure that the vehicle was not used in any crime and, crucially, that “Under A.R.S. 13-4314(G) the State is due attorney fees from a party who does not prove they are entitled to an exception to forfeiture.”
You can easily imagine how that information affected a woman who can’t even afford her own lawyer.
Rhonda decided to give up. Fortunately, however, the case came to the attention of the ACLU’s Criminal Law Reform Project and ACLU attorneys have joined forces with the Phoenix firm of Perkins Coie to contest the constitutionality of the Arizona forfeiture law. Their complaint in U.S. District Court is available here.
Rhonda’s lawyers argue that her rights under the First, Fourth, Fifth, and Fourteenth Amendments have been violated. “Rhonda was caught in a Kafkaesque predicament where, bizarrely, she bore the burden of proving that she was entitled to get the Truck back,” they state.
And the law additionally infringes upon her rights by providing that if she chooses to fight the seizure and loses, “she not only loses the Truck, but is further punished by being liable for the attorneys’ fees and for the costs of investigation of the State.”
In short, the law creates a risk for people who try to defend their property, a risk that cannot be squared with the constitutional guarantee of due process of law.
Law enforcement officials already have a strong incentive to seize the property of people like Rhonda Cox who have not even been charged with any crime, much less convicted; this provision of Arizona law then creates a disincentive for anyone to chance losing even more by daring to contest the government.
A “loser pays” law makes sense in civil litigation where we want to deter nuisance suits, but it has no place at all where the citizen confronts the power of the state.
I have argued repeatedly that civil asset forfeiture laws should be pulled out by the roots. They are just as incompatible with any sense of justice and fairness as the Jim Crow laws were. Let’s hope that the court sees the blatant unconstitutionality of Arizona’s statute and strikes it down.
And as icing on the cake, it could grant Rhonda her attorneys’ fees and costs under 42 U.S. C. Sec. 1988. That would be fitting.