Goldwater Institute Is Fighting to Protect Your Property From Being Seized

Civil forfeiture is a law that allows police to take, keep, and profit from someone’s property without even charging them with a crime—much less convicting them of one. The Goldwater Institute is fighting to reform this unjust law in capitols and in courtrooms across the country.

Police can use civil forfeiture to seize property that is merely suspected of involvement in criminal activity. Unlike criminal forfeiture, the government does not need to prove that a crime occurred. In Arizona, no one even has to be charged with a crime for their property to be confiscated. That makes it easy and lucrative for the government to take and keep property, regardless of whether the owner was guilty or innocent. It is such an effective tool that hundreds of millions of dollars are forfeited in just this way every year across America.

Once the property is seized, it is up to the owner of the property to hire a lawyer and go to court to attempt to get his or her property back. No attorney is provided by the government, which means the property owner will need to spend thousands of dollars to even get into court. Furthermore, unlike in criminal cases, the government does not have to prove its case “beyond a reasonable doubt.” It must merely show by “clear and convincing” evidence that the property was being used in connection with a crime. (This standard was actually strengthened, from “preponderance of the evidence,” in 2017.)

Innocent owners—whose property was used by someone else—face an additional hurdle. Arizona requires them to show that they “did not know, and could not reasonably have known” 7 that their property would be used in the commission of a crime. In other words, Arizona requires innocent owners to prove a negative, a notoriously challenging burden of proof in legal cases. If the owner is lucky enough to get property back, whoever held it still gets a paycheck because the government and their tow companies can charge hundreds or even thousands of dollars just for the privilege of having them confiscate and hold that property.

Six years ago, police showed up at Malinda Harris’s home and demanded the keys to her car. They confiscated her property, treating her as if she were a criminal. But she wasn’t even accused of a crime. “I’m a grandmother, not a drug lord,” Malinda wrote in USA Today. “Why can police take my property?

Malinda’s story began in March 2015 when she let her son, Trevice, borrow her car. Police in Berkshire County, Massachusetts, suspected that he was selling drugs, so they seized Malinda’s car under the state’s civil asset forfeiture law, even though she had not been accused of any crime. But she had no idea that her son might have been involved in illegal activities when he was charged with a crime.

Thanks to the work of the Goldwater Institute, Malinda is getting her car back at long last. Read more about her case here.

Kevin McBride is a handyman in Tucson who relies on his Jeep to earn a living and who has literally been left stranded by the government because of civil forfeiture. Back in May, Kevin’s girlfriend stopped by his job site and asked if she could help him cool off by getting him a soda from a local convenience store. Because she had no other way to get there, she took his Jeep and he went back to work. When his girlfriend didn’t return, Kevin started to worry, so he got a ride to go and look for her. When he arrived at the convenience store, his Jeep was being loaded onto a wrecker by the police. He saw his only method of transportation being hauled away—along with his livelihood—and he didn’t understand why.

A police officer on the scene gave Kevin a handwritten phone number to call for information. Kevin called again and again. He called for three weeks before anyone answered, and when they did, Kevin heard crushing news: The District Attorney was holding his Jeep as evidence of a $25 crime they said his girlfriend committed (the alleged sale of three grams of marijuana). Did it matter that they had dropped all charges against her? No. They were keeping the Jeep using civil forfeiture, even though Kevin had done nothing wrong. Kevin needs the Jeep to do his work as a handyman, so he is effectively out of work, too. To add insult to injury, after Kevin made a claim for the Jeep, the Pima County Attorney’s Office told him he would have to pay $1,900 to get his Jeep back. There was no explanation why. That was just an amount the government had chosen. Kevin could pay it, or he could watch his Jeep be sold—with police keeping the proceeds.

Innocent people like Kevin must hire an attorney (although here Kevin is represented pro bono by the Goldwater Institute), go to court, and prove a negative—that he did not know that his girlfriend was using the Jeep to allegedly sell marijuana. This burden is unconstitutional. The burden should be on the government to show that Kevin was involved. You can read more about Kevin’s case here.

Imagine you are sitting in your home when the police knock on your door. Officers enter and search your entire home, seizing your personal property. After your property is taken, you are given a slip of paper listing your seized belongings. The police then leave, and you are left with few answers.

Unfortunately, this is exactly what happened to Luis Garcia.

Luis lives in Mesa, Arizona, and is a contractor for the Univision television network. He is also active in his community and helps organize local youth soccer events. Last fall, Luis collected $5,300 for the Copa Univision Arizona 2019 Youth Soccer Tournament from various local teams. After collecting the money for the tournament, Luis returned home. Soon after, his Mesa home was raided by the Scottsdale Police Department based on an investigation into Luis’s adult son. Although Luis was not implicated in any wrongdoing, the police searched his entire home. When law enforcement found $5,300 that Luis had collected for the soccer tournament, they took it as evidence, despite there being no connection between the money and any alleged illegal behavior.

Luis was never charged with or suspected of connection to any crime. Yet police seized his property without direction, instruction, or mechanism by which to get it back. To ensure that the Youth Soccer Tournament could still take place, Luis took out two title loans on his two cars to cover the seized funds. In short, the Department seized an innocent person’s money with no cause or explanation.

In October, the Goldwater Institute sent a letter to the Scottsdale Police Department demanding the return of the $5,300 to rectify the erroneous seizure. Shortly after the Department received Goldwater’s letter, we learned that Luis’s funds would be returned to him.