Judge Diane Humetewa

U.S. District Court Judge Diane Humetewa

ARIZONA DAILY STAR

PHOENIX — A federal judge has given the go-ahead for a broad-based challenge to Arizona laws that allow police and prosecutors to profit from items they seize.

In an extensive ruling, U.S. District Court Judge Diane Humetewa said there was enough evidence in the lawsuit, filed in 2015, to give attorney Jean-Jaques Cabou and the American Civil Liberties Union a chance to prove the laws are unconstitutional. They claim the laws provide an “improper financial motivation” for law enforcement to take money, homes, cars and other property.

The case itself surrounds the complaint of San Tan Valley resident Rhonda Cox.

She said her rights were violated when Pinal County sheriff’s deputies took her truck and the County Attorney’s Office sold it based on the activities of her son. And Cox charged that Arizona law erected barriers to her challenging the seizure, including requiring her to pay a filing fee just to get into court.

But Humetewa said the evidence presented so far show this is not a local issue.

“Many state agency departments are entirely funded through forfeiture money,” the judge wrote in her 20-page order.

“For instance, the Arizona Department of Public Safety’s bomb squad, SWAT team, and hazardous materials unit rely entirely on forfeiture money,” Humetewa said. “Other agencies use their forfeiture money to pay overtime, retirement contributions of employees, and department vehicles to name a few.”

What that means is if Cox wins her case and Humetewa voids the civil forfeiture statutes, the impacts will be felt statewide.

Cabou said the changes in forfeiture laws adopted by legislators earlier this year did resolve some of the complaint.

For example, it is no longer necessary for those whose property is seized to have to pay a filing fee to challenge the action. And property owners who lose in court no longer face the threat of having to pay not only their own legal fees but those of the government, both provisions that provided a clear disincentive for people to try to get their property back.

But Cabou said that still leaves the questions of whether Arizona’s forfeiture statutes are fair. “The core of the case was always the policing for profit incentive,” he said.

“The center of the lawsuit was always about the fact that police in Arizona and prosecutors in Arizona have a direct financial incentive to seize as much property as they can without regards to due process,” Cabou said.

The Attorney General’s Office, which tried to have her case thrown out, declined to comment.

The case stems from the fact that Cox’s son, Chris, had been arrested in 2013 after deputies determined that the hood and a cover on the back of her pickup truck, which he was driving, had been stolen. Based on that, deputies seized the truck.

Cabou said Cox was unaware of the stolen items and therefore, under the terms of the law, entitled to have the truck returned. That did not happen and the truck and its contents were sold.

Under Arizona law, neither police nor prosecutors need charge anyone with a crime, much less gain a conviction, in order to seize property.

Instead, the law at the time required only that prosecutors show by a “preponderance of the evidence” that the property was linked to a crime. That essentially is a 51-49 standard, with a judge needing to believe the allegations are more likely true than not.