One man is arrested while transporting drugs and cash in his car, acting as a “mule” for a drug cartel. Another is a young man who made one illicit errand while using his mother’s car to go to the bank.
Both could be subject to having their cars and cash seized.
The process for law enforcement seizing property linked to crime has become a contentious issue. Recently, the Arizona Legislature passed House Bill 2477, which has been described as moderate reform for the process known as civil asset forfeiture.
“Today’s important legislation strikes an appropriate balance between enabling law enforcement to do their jobs while upholding civil liberties,” Gov. Doug Ducey said upon signing the bill into law last month.
Critics of Arizona’s handling of asset forfeiture and the funds they contribute to — sometimes known as RICO funds — saw a couple of concerns addressed in the new law.
“I absolutely believe we need reform in this area,” said State Sen. Sylvia Allen [R: District 6], who voted for the bill.
The first issue is the standard by which assets can be taken, including cash and property such as a vehicle. The new law establishes a higher standard, requiring “clear and convincing evidence” whereas prior law only required the lower “preponderance of evidence.”
“I think there’s a lot of abuse,” Allen said. “I believe in due process …. Their property is taken before they have been found committing the crime.”
Allen said that simply having a large amount of cash can be enough to trigger forfeiture.
“For some reason, they [police] believe right off the bat that you got that money illegally,” she said.
The move has been described as moderate by reform advocates as it does not elevate the forfeiture process to a criminal standard for conviction, proof beyond the shadow of a reasonable doubt.
Yavapai County Attorney Sheila Polk said that the higher standard in HB 2477 means that the allegation is substantially more likely true than not. This could result in a few cases not being pursued but “Frankly, we usually have that high a burden anyway, even in the old system,” she said.
Pushing for a criminal standard for seizure was going too far, according to Polk. Since civil cases only deal with property, as opposed to the loss of freedom, the cases are less severe, warranting the lower standard, she said.
“It would elevate the rights of wrongdoers to their property far higher than the rights of anybody who is litigating property rights in the civil court,” she said.
Allen said that during the legislative process, there was an “extreme amount of pressure put on the legislators about this bill,” from law enforcement lobbyists.
“You’re going to have to do a lot of negotiating,” she said. “This is a good first step.”
Polk said she worked closely with the Legislature on this bill.
“I had worked with the sponsor [Rep. Eddie Farnsworth R-Distict 12] trying to come up with some compromises to address the sponsor’s concern … and trying to make sure the sponsor understood the purpose of our asset forfeiture laws,” she said. “What we ended up with will be some changes but it’s a law that we can definitely work with,” Polk said.
Eventually, Allen would like to see civil asset forfeiture held to criminal standards.
“You are innocent until you are proven guilty,” she said. “The next step I believe is you get your day in court.
“It’s got to be a criminal charge.”
Cottonwood Police Chief Steve Gesell said that the ability to seize property under the new rule shouldn’t affect too much of the department’s business.
Law enforcement in general is affected by raising standards, though, he said. But a criminal standard would go too far in what he said was an important way to hit drug dealers: By taking their capital.
Transporters of drugs are often easily replaced and their arrests do little to slow large-scale drug operations.
“The push in some corners was to attach the civil forfeiture adjudication to only when someone is convicted of a crime. That would be, in my mind, and I think most of my colleagues’ minds, a complete calamity to our ability to protect the public,” he said.
If held to a criminal standard, Gesell said that some drug transporters, who may even be unaware of their full involvement, would not have enough of a case against them to take funds.
“What would be earth-shattering would be to raise this to a criminal standard,” he said.
Gesell has experience working with civil asset forfeiture in areas where it is more commonly practiced, such as Scottsdale, working with county state and federal systems. He has worked as a detective and lieutenant with the Drug Enforcement Agency.
“Asset forfeiture is a very valuable tool,” he said.
He said it would be a wait-and-see situation in the new raised standard. While money tucked into a secret compartment in a wheel well could likely pass the new bar, money in a suitcase may be more difficult to link.
“That’s [seizing money] is where you really hurt these cartels,” Gesell said. The arrest of a mule “does nothing to disrupt them and their ability to continue to commit crimes. What hurts them is taking the proceeds and/or product.”
Allen disagreed that the property was the main issue at hand.
“It’s not the property committing this crime,” she said.
She did agree that cartels and organized crime should still be fought with the law but praised the new law for its increased transparency.
Getting Property Back
An issue critics have of current standards is that no conviction or charge must be made in criminal courts before asset forfeiture can take effect. Once property is seized, it can be difficult to get back. Further, in order to recoup legal fees from the state, defendants must show that the property in question should have never been seized under standards at the time of the seizure.
Allen said that this bill addresses those issues by allowing reasonable attorney fees to be compensated by the court upon recovery.
“It shouldn’t be a huge, complicated process to get your property back,” Allen said. “It’s a nightmare to lose you car. Now you can’t get to work.”
Polk said Yavapai County is aware of situations that may occur in which property may be questionable whether it passes standards for asset forfeiture. She said that due process was still in place for those involved.
“Early on, if you have an innocent owner of property — so for example, if your son took your car and is using your car to transport methamphetamine across the county and got stopped, we would look at forfeiting that vehicle but when you produce proof that the vehicle is yours and you weren’t involved in a conspiracy to transport meth, then early in the system your property gets back to you,” Polk said.
Property owners can contact the county attorney’s office to notify it of such a third-party ownership to get property back, Polk said. She said her office works quickly to clear up these situations, as there may be timely legitimate business being held up as well.
She gave the example of a cantaloupe company recovering its produce before it spoils from a stop wherein the driver — unbeknownst to the company — was also transporting drugs.
“We don’t want to disrupt legitimate business,” shes said.
Allen lives in Snowflake in Navajo County, which she also represents. She said that though the Verde Valley hasn’t called her with any complaints, there have been issues along Interstate 40.
“The feedback I got from everybody was that this new law was great,” she said. “I don’t think that it will actually stop law enforcement from taking those dollars in large drug busts connected to cartels and then be able to use that for law enforcement.”
Gesell said that in his experience, most people do not seem concerned with how the law works.
“I think it pretty much goes under the radar,” he said, though certain groups help drive the politics of the situation.
“There’s always concern over the validity of the process,” he said, though he said he never has had a concerned resident bring it up to him throughout his career. Still, he was appreciative of the public calls for reform in media.
“Some of the concern is healthy,” he said. “Even though there’s an adjudication process … there’s still that recognition that everything we do is public record and we need to follow the law.
Gesell said without these conversations, abuse in any area would occur with more frequency. Polk said Yavapai County has never received a complaint over asset forfeiture.
HB 2477 changes the way the county will report its seizures to the Arizona Criminal Justice Commission, which compiles statewide reports.
“HB 2477 does change how reports are received as well as the types of information required of each report,” said Jaime Watson, public information officer and legislative liaison for the ACJC.
“HB 2477 mandates that new information be included on the RICO expense reports that provides a greater level of granularity to the various expense categories. In addition, HB 2477 creates an entirely new report on Forfeiture Orders that ACJC will now collect on the same quarterly basis. In addition to HB 2477, HB 2243 was also passed affecting the reporting process. HB 2243 mandates that ACJC accept the necessary RICO expense reports from participating agencies in an electronic format on a quarterly basis and provide a comprehensive electronic expense report on a quarterly basis to various listed state entities.”
Polk said that the workload for this new reporting would fall on the attorney’s offices to provide.
“The new reporting is very much expanded,” she said adding that she would have to see if current staff will be enough to keep up.
“I understand the public’s desire to see how this money is spent,” she said. “The new law will create a summary for each case.”
Transparency is always preferable, she said.
“Time will tell whether the public will actually use that data,” she said.
Yavapai County civil asset forfeiture funds are pooled at the county level. Polk has meetings with heads of law enforcement and, under set spending rules, decides how the money should be spent.
Funds of this type must be spent on law enforcement, which includes payroll in Arizona. Polk said that primarily, the funds in Yavapai County are used to keep Partners Against Narcotics Trafficking up and running. PANT is a joint task force of county law enforcement used for drug arrests.
Gesell said that having Polk in charge of the meetings provides an additional check of the system, providing accountability for law enforcement.
In addition, departments can request certain specific amounts of “buyitem” requests on top of any regular installment. This was used in CPD’s case to purchase $5,000 of fencing for the evidence storage yard.
Also, once fund levels reach a certain point, funds are dispersed. Cottonwood, over the last few years, received around $30,000.
In the last year fiscal year 2015-16, for the state, total funds from state and federal resources were $86.3 million, according to the ACJC. Yavapai County ended with $27,821 the same year. CPD received $28,075 in that time.
“It’s a liberating tool,” Gesell said. “To be able to take those monies and reinvest them to protect the public.”
These funds help initiatives, such as the Cottonwood Police Department’s app, which otherwise could be kicked down the road, Gesell said.
One criticism of funding is that police department’s may work in a more for-profit model of enforcement.
“I think decisions on how money is spent is very removed from the peace officers on the street performing these seizures,” Polk said.
In California, where Gesell previously worked, he said the process provided much more sparse funds, which affected enforcement. If funds were to dry up as a result of higher standards, Polk said that it would likely force PANT to cease existing.
“I love the work of the PANT unit. PANT is able to work drug tips up the chain to go after folks who are trafficking,” she said. “Without RICO funding, we would not be able to keep that unit afloat.”
Under the new law, local agencies will not be able to partner with the Department of Justice at the federal level for property worth less than $75,000. Gesell said that federal cases which partner with local agencies are not common in rural areas like Northern Arizona. Therefore, it would be unlikely that this change in what is known as “equitable sharing” laws will affect funds here.
The issue of forfeiture, though mostly handled by the states, is a national one, Allen said.
“This is being asked for across the country,” she said.
Furthermore, she noted the passage of HB 2477 was bipartisan.
“We have got to be where we are not causing harm to innocent people who have not done anything wrong. That’s all I’m saying. There’s got to be a balance. I don’t want to be soft on anyone dealing drugs at all,” Allen said. “This bill will help put guidelines in place.”
Polk said that she is hopeful that any issues with the new law will be addressed by the Legislature in the near future.