In The Law, Frederic Bastiat warned against what he termed “legal plunder” — the government forcibly taking one person’s property and giving it to another. It’s morally wrong and leads to the progressive destruction of civil society as more and more people and groups seek to live at the expense of others through the state.
One of the most odious modern examples is called civil asset forfeiture.
Under federal and state civil asset forfeiture laws, individuals can have their property (cash, vehicles, real estate, or anything else) confiscated by law enforcement officials merely on the allegation that the property was somehow involved with or obtained from criminal activity. The individual need not even be accused of any illegal conduct, much less convicted, in order for officials to seize the “guilty” property.
Once the property has been seized, it is up to the owner to battle through difficult legal obstacles to recover it. In such proceedings, the burden of proof is on the individual to show that the seizure was wrongful and that he’s entitled to have the property returned. Police and prosecutors love civil asset forfeiture because the proceeds actually go into their own budgets, and they are not inclined to cooperate with innocent victims of their confiscations.
To see how despicable this is, consider a recent case that arose in Pinal County, Arizona.
In April 2013, Rhonda Cox purchased a used pickup truck, which she titled and insured in her name. She often allowed her son Chris to use her truck, and one day in August 2013, he drove it to a store. Upon returning to the vehicle, Chris was confronted by Pinal County sheriff’s 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 Cox’s 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 rushed to the scene, where she found one deputy remaining, guarding her truck. She explained that the vehicle belonged to her and asked how she could get it back. The deputy smugly replied that she would never get it back. When Rhonda protested that she had nothing to do with the alleged crime, the deputy merely said, “Too bad.”
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 was 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.”
Not only could she lose her truck, she also would face thousands of dollars in fees if she tried and failed to recover it. 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 American Civil Liberty Union’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.
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 threat of additional punishment 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. All it does is to facilitate legal plunder.
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 courts see the blatant unconstitutionality of Arizona’s statute and strike it down.