Attorneys for the state and Pinal County are asking a federal judge to throw out challenges to the ability of prosecutors and police to seize private property without first getting a court order.
In legal filings Friday, James Jellison said the Pinal County woman who sued has no legal standing to contend that the civil forfeiture laws are unconstitutional.
Jellison, who represents Pinal County Attorney Lando Voyles and Sheriff Paul Babeu, pointed out that San Tan Valley resident Rhonda Cox never pursued her claim that her truck was illegally taken. And Jellison said there is no evidence that Cox, who wants a federal judge to block future use of the forfeiture laws in Arizona, is going to be affected by them again in the future.
Assistant Attorney General Robert Ellman, in a separate filing, told Judge Diane Humetewa she has no legal standing to overturn a final action by a state court approving the seizure.
While the attorneys deal with the finer legal points, Voyles is defending the entire concept of being able to take property involved in a crime without first having to go to court to prove that.
“The forfeiture statutes are an important and necessary tool in preventing and deterring crime in Pinal County,” he said in a prepared statement.
“They disrupt criminal activity by depriving criminals of the fruits and instrumentalities of their crimes.”
And Voyles said the law acts as a deterrent, saying if someone intends to commit a crime, “We must come at them from every angle, using every resource possible to seize all of their criminal assets.”
The statutes in question are the state’s Civil Assets Forfeiture Laws. These are Arizona’s version of federal RICO statutes — Racketeer Influenced and Corrupt Organizations laws — designed to allow prosecutors to deprive criminals of the assets used in breaking the law.
They are most often aimed at organized crime and drug smugglers, allowing seizure of their proceeds, vehicles and even homes linked to illegal activity.
Because these are civil statutes, there is no requirement for prosecutors to first prove to a judge a link between the crime and the items. Instead, it sets up a procedure where the prosecutors seize the items and force owners who contest the seizure to go to court — after paying a fee — to argue there is no basis for taking them.
This case involves something much smaller: a pickup truck and its contents belonging to Rhonda Cox.
Cox’s son, Chris, was arrested in 2013 after deputies determined that a cover on the back of her truck, which he was driving, had been stolen.
Cox argued she was unaware of the stolen item and therefore, under the law, entitled to have the truck returned.
By law, Cox had the right to go to court and contest the seizure. But attorney Jean-Jacques Cabou, working with the American Civil Liberties Union, said Cox gave up on the fight after being told it would cost her $304 just to file a claim.
That fee, Cabou argued in the lawsuit, caught Cox “in a Kafkaesque predicament where, bizarrely, she bore the burden of proving that she was entitled to get the truck back.” And he said that, in some cases, $304 is more than the value of the property.
And that’s only when people try to represent themselves and don’t have legal expenses.
But Cabou went further, arguing to Humetewa that the whole forfeiture law is invalid because allowing police and prosecutors to keep the money raised by selling property 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.
He told the court that forfeiture 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.
Voyles denied there is such an incentive, saying a decision on seizing property is made by the police officer who makes the arrest, not some police chief, county sheriff or even prosecutor. But he said there is no reason local agencies that make the arrests and seizures should not benefit.
“I believe that the places where we find the crime is where we need to help with the money that we pull from criminals so we can use it against them,” Voyles said.
Ellman, in his legal arguments filed Friday, said that fee does not provide the basis for arguing the entire law should be struck. He said state courts do allow for waivers from fees.
In any event, Ellman argued, there is no basis for Cox to challenge the Arizona law in federal court.
Cabou, however, said police and prosecutors “bullied her out of court” and now are saying she was given all the due process to which she is constitutionally entitled. That, he said, “is as audacious as it is wrong” and entitles her to seek federal court relief.
“Under federal civil rights law, when police and prosecutors violate the Constitution, victims like Rhonda have a right to ask a federal court to hold those people accountable for their unlawful acts,” Cabou said. “That’s what Rhonda has done.”
Voyles, however, said Cox had her chance to make her argument, but decided not to pursue her claim.
