PHOENIX — The American Civil Liberties Union is launching a broad-based constitutional challenge to the ability of prosecutors and police to seize private property without a court order.
In a lawsuit set to be filed today, the organization claims that San Tan Valley resident Rhonda Cox had her rights violated when the Pinal County Attorney's Office took her truck and sold it.
Attorney Jean-Jacques Cabou acknowledged that her son, Chris, had been arrested in 2013 after deputies determined that a cover on the back of her pickup truck, which he was driving, had been stolen. Based on that, deputies seized the truck.
The attorney said, though, that Cox herself was unaware of the stolen item and therefore, under the terms of the law, entitled to have it returned. That did not happen and the truck and its contents eventually were sold.
But the challenge goes beyond what happened to Cox and her ill-fated attempt to fight the county. It asks a federal judge to void the laws that allow such seizure as a violation of constitutional rights of due process, illegal seizure and a burden on her First Amendment rights.
At the heart of the case are the state's Civil Assets Forfeiture Laws. These are Arizona's version of RICO statutes — Racketeer Influenced and Corrupt Organizations laws — designed to allow prosecutors to deprive criminals of the assets used in breaking the law.
But what's happened, Cabou said, is that police and prosecutors have become dependent on all the money raised. That, he said, creates "perverse incentives'' for law enforcement officers to go out of their way to not just seize property but to throw roadblocks in the path of those who challenge them.
And there's a lot of money involved.
Cabou said the accounts for the Attorney General's Office at last count had more than $31 million. A pooled account for county attorneys, he said, had $43.2 million, with local agencies holding $9.5 million.
And Cabou said these funds are controlled by police and prosecutors, providing them with "a perverse, unfair, unconstitutional incentive to seize and forfeit as much money and property as possible as a means to ensure a slush fund available to them with little or no oversight.''
The lawsuit cites other problems with the law.
For example, Cabou said, the property is automatically taken unless the owner challenges it. And there are legal reasons for a challenge, including that the owner had no knowledge of the crime committed with the property by someone else.
But he said it takes a $304 filing fee just to get into court, more than some property is worth. And that's even assuming the person does not hire legal counsel.
And Cabou said Cox was threatened by a deputy county attorney that if she pursued her case and lost, the county would pursue her for all of its legal fees and costs. Yet Cabou said the law is set up so that if a property owner like Cox wins, she does not get her legal fees paid by the county.
In essence, he said, the laws "punish Rhonda for standing up for herself and her property in court.''
Then there's the legal process itself.
"Rhonda was caught in a Kafkaesque predicament where, bizarrely, she bore the burden of proving that she was entitled to get the truck back,'' Cabou wrote. "The state did not have to prove that Rhonda did anything wrong — let alone criminal — in order to keep the truck.''
In the lawsuit, Cabou takes particular aim at Pinal County officials.
He listed some uses of the funds, including that County Attorney Lando Voyles has has home security system paid for with money from seized items. Other uses by Voyles include office staff and retirement contributions for employees.
And Cabou said Sheriff Paul Babeu funnels money into a foundation "which buys things for him and his department.'' What that does, said the lawyer, allows Babeu to avoid laws on seeking bids for items and providing a public record of where the money goes.