Appeals Court Says Couple's Lawsuit Over Bogus Vehicle Forfeiture Can Continue

from the you-brought-this-on-yourself,-so-called-'forfeiture-attorney' dept

Another attempted government theft has been thwarted by the courts. The Ninth Circuit Appeals Court has ruled in favor of a couple whose vehicle was carjacked by Arizona law enforcement officers while their son used it for an extended road trip.

Here’s AZ Central’s summary of the events leading to the lawsuit the Ninth has revived:

Terry and Ria Platt had loaned their 2012 Volkswagen Jetta to their son in the spring of 2016 for him to use on a vacation. Their son was driving from the East Coast back to Washington on Interstate 40 when an Arizona Department of Public Safety trooper stopped him in Navajo County for having tinted windows.

Members of the Navajo County Drug Task Force had a K-9 unit search his car and found a small amount of marijuana for personal use and over $31,000 in cash, according to court documents. Law enforcement seized the vehicle and money on suspicion they were being used or planned to be used for illegal purposes. But none of them were ever charged with a crime.

This is pretty much the standard origin story for forfeitures: cops stop car, find some reason to search it, and walk off with whatever cash they can find. In this case, they decided to take the car, too.

But there are few additional wrinkles here, which show just how much the incentives of forfeiture have perverted the process. The Appeals Court decision [PDF] notes the car’s owners tried to challenge the forfeiture using the processes made available by the state, but that was brushed aside by the entity directly profiting from the seizure.

After receiving [a forfeiture] notice, persons with an interest in property subject to forfeiture proceedings face a choice between two avenues for protecting their property rights. They may “file either a claim with the court . . . or a petition for remission or mitigation of forfeiture with the attorney for the state” within thirty days of the notice, “but may not file both.” If a property owner does not pursue either option, then the state’s attorney may proceed in court with “uncontested forfeiture.” In uncontested forfeiture proceedings, the state need only establish probable cause to believe that the property is subject to forfeiture; it need not prove the factual basis for forfeiture by clear and convincing evidence, as required for contested forfeiture proceedings.

The Platts chose the first option: filing a petition for remission or mitigation. This is supposed to be followed by the government conducting an investigation of the forfeiture (to obtain more proof that the seized property is tied to illegal activity) and issuing a written declaration, which then starts the clock (30 days) on the filing of a counterclaim by the property’s owners.

That didn’t happen here. The county’s “asset forfeiture attorney,” Jason Moore, read the Platt’s petition and basically said it never existed.

Here, the Platts allege, no written declaration of forfeiture issued. Instead, Moore unilaterally determined that the petition was defective. Without notifying the Platts of any defect or affording an opportunity to correct it, he proceeded as though the forfeiture were uncontested, representing to the Superior Court in his application for forfeiture that “no timely claim or Petition for Remission has been filed.”

It wasn’t until the Platts responded to this obvious bullshit with a claim of property in an Arizona court that the forfeiture attorney finally said what was wrong with the petition he had ignored — a statement prompted by this new threat to his “uncontested” forfeiture.

[The] Platts proposed to construe Moore’s purported application for forfeiture as the written declaration of forfeiture that should have been issued in response to their petition, which would have afforded them thirty days within which to file a claim against the property. Moore promptly moved to strike that claim, asserting for the first time that the Platts’ petition for remission or mitigation was defective because, although it had been signed, it did not state that it had been “signed under penalty of perjury.”

Sick of all of this (and now represented by the Institute of Justice [working pro bono]), the Platts sued the state, county, and the attorney. They sought a declaration the state’s uncontested forfeiture program violates due process rights. They also alleged Jason Moore himself had violated their rights with his attempted forfeiture.

Most of those claims did not survive the district court’s review of the case. But the “forfeiture attorney” is still potentially on the hook for his actions, which included returning the vehicle to the Platts five months after it was impounded and, more damningly, two weeks after he was sued. So is the state, which will have to continue to defend its forfeiture program, which obviously can be very easily abused.

The court says the program in Arizona has some serious problems. Specifically, it allows this exact chain of events to occur.

This obvious vulnerability in Arizona’s forfeiture regime to a procedural due process challenge cannot be mitigated by interpretative sleight-of-hand. Even if we were to interpret Arizona’s command that those who choose to file a petition “may not file” a claim until a declaration of forfeiture has issued as limited to those who file valid petitions, see A.R.S. § 13-4309(2), it would remain the case that a state’s attorney could unilaterally deem a petition invalid without alerting the petitioner.

The claim against the law is revived. So is the “biased adjudicator” claim against the government’s attorney, since he was directly involved in attempting to short-circuit an already deficient process to gain ownership of the seized vehicle — something his office would directly benefit from.

The district court’s assessment that Moore’s conduct did not delay the return of the Platts’ car likewise does not affect our standing analysis. The district court concluded that the Platts “filed their claim more than a month before the September 20, 2016 deadline that would have applied for Moore to mail a declaration of forfeiture, and before the deadline that would have applied for them to file a claim in response to a declaration of forfeiture.”

First, the district court’s analysis ignores the potential that an unbiased adjudicator would have assessed the merits of the Platts’ petition and issued a declaration of remission, not a declaration of forfeiture, by September 20 (as Moore’s ultimate decision to return the car and abandon the forfeiture suggests is likely). Second, this analysis assumes that the Platts secured procedural due process upon the filing of their claim, not upon the return of their car. The filing of the claim could only provide due process if Moore’s motion to strike would have failed. As we have explained, that is at best unlikely, and cannot preclude the Platts’ standing to challenge the statute.

We accordingly reverse the dismissal of the Platts’ (state law) biased adjudicator claims.

The lawsuit moves forward. Hopefully, it will result in a decision that forces the state to rewrite its forfeiture rules to, at the very least, respect due process rights. And there’s always a chance a rewrite might address the perverse incentives that encourage the behavior seen here.

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Comments on “Appeals Court Says Couple's Lawsuit Over Bogus Vehicle Forfeiture Can Continue”

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That One Guysays:

'Oops, you missed a comma, my car now.'

Asset forfeiture/robbery at badgepoint is a legal abomination that needs to die as swiftly as possible but providing the victims only two options to challenge being robbed, telling them they can only make use of one of them and having one of them so openly broken that the reviewer can just decide that they didn’t do it right and lose their property because of it really cranks up the blatant corruption to an impressive level, so it’s nice to see that at least one court seems to have gotten that right.

Tanner Andrewssays:

Re: Another bright lining to this decision...

The state is on the hook for the plaintiff’s costs for the appeal.

Yes. Costs include things such as filing fees and maybe transcripts. Notably, costs do not generally include attorney fees.

There are some statutes which expressly make attorney fees either recoverable or recoverable as part of the cost of the action, but generally in the U.S. each side pays its own attorneys. See Arcambel v. Wiseman, 3 U.S. 306 (US 1796).

That Anonymous Cowardsays:

Innocent until proven guilty… unless its your property.

Thou shalt not kill… unless we didn’t clearly define you had a right to continue to breathe despite having annoyed/scared a cop.

It would be nice, but never going to happen, that we started including sunset clauses in new laws… so that when the law doesn’t do what it was promised it would do it can just end itself.
They would have to make efforts to keep it alive & well in civil asset forfeiture that would mean publishing all of the data & well since it never takes out the drug lords in supercars they told us it would and instead is robbing people based on nothing more than they had a car we could get a couple bucks from & some money in their pocket.

Tanner Andrewssays:

Re: Another bright lining to this decision...

The state is on the hook for the plaintiff’s costs for the appeal.

Yes. Costs include things such as filing fees and maybe transcripts. Notably, costs do not generally include attorney fees.

There are some statutes which expressly make attorney fees either recoverable or recoverable as part of the cost of the action, but generally in the U.S. each side pays its own attorneys. See Arcambel v. Wiseman, 3 U.S. 306 (US 1796).

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