Challenging the constitutionality of Arizona’s asset forfeiture laws

Terry and Maria Platt

Following the seizure of their car by the Navajo County Attorney’s Office, an elderly Washington couple, Terry and Maria Platt, are challenging the constitutionality of Arizona’s asset forfeiture laws. They are represented by the Institute for Justice, a libertarian-leaning public interest law firm.  A civil rights lawsuit was filed last week arguing the seizure of their car was illegal and the state’s complicated rules are rigged to deny defendants their due process rights.

According to the lawsuit, the Platts had loaned their son Shea their 2012 Volkswagen Jetta in May so he could drive to Florida for a vacation. Passing through Arizona he was stopped by police for a window-tint violation.  The police undertook  a search of his vehicle and found in the region of $31,000 in cash and a small amount of “personal use” marijuana.  Shea was arrested for possession of marijuana and paraphernalia and for money laundering.  Months after he was released from police custody there are still no pending criminal charges against him. Yet the cash and car were seized. Under asset forfeiture laws, police can seize property suspected of being connected to criminal activity, even if the owner is never convicted or even charged with a crime. In this case the owners were hundreds of miles away.

The Platts subsequently received a letter from the Navajo County Attorney’s Office informing them they only had 30 days to send a petition to the county attorney or file a challenge in court. Failure to act meant their car would be summarily forfeited.

Having taken likely attorney fees into consideration, the Platts decided to send a handwritten petition before the deadline to the attorney’s office. However, the Navajo County Attorney’s Office filed an application in county court for an uncontested forfeiture of the car, declaring the Platts’ petition “null and void.” According to the Institute for Justice, the attorney’s office never submitted the Platts’ petition to the court or explained why it was rejected.

The Navajo County Attorney’s Office then filed a motion in response to the Platts’ lawsuit arguing their petition was invalid because they had neglected to include the words “under penalty of perjury” with their signatures.

In a counter motion the Institute for Justice responded “The implication of the State’s argument is breath-taking…….the State is arguing that this Court cannot review the legality of the State’s actions here – actions taken under a profit incentive to take property for forfeiture – and the Court must ignore Terry and Maria’s attempts to invoke judicial review of the State’s decision to ignore Terry and Maria’s June 28 pro se Petition.”

The Institute for Justice also argues the small amount of marijuana found in the Platts’ car was well below the two pound threshold for a drug felony in Arizona, making the seizure of the cash and car illegal in the first place.

Whilst many states have reformed their asset forfeiture laws in recent years, Arizona ranks among the worst in the country when it comes to due process protections for property owners. Being a civil process there is no right to an attorney, the burden of proof falls on the owners to prove their innocence and those who challenge a seizure can be charged for the government’s attorney fees if they lose.

Paul Avelar, attorney for the Institute of Justice, said in a statement “Arizona’s civil forfeiture maze is the greatest threat to property rights and due process today”. No one should lose their property without being convicted of a crime and law enforcement should not be allowed to keep and spend what they forfeit.”

According to the Institute for Justice, Arizona raked in $36 million in forfeiture revenues in 2015. All of that money goes back into the budgets of police departments and county attorneys. On the one hand law enforcement groups say asset forfeiture laws are necessary to target the proceeds of organized criminal operations like drug trafficking.  On the other hand civil liberties advocates say such profit incentives lead to police and prosecutors shaking down everyday citizens.

The Navajo County Attorney’s Office declined to comment on the case.

Be the first to comment

Leave a Reply