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Senate votes to make seizure of property more difficult for police

PHOENIX — Without a single dissent, state senators approved changes Monday in Arizona laws designed to sharply curb the ability of prosecutors and police to seize property.

The measure includes a new requirement that prosecutors must prove by “clear and convincing evidence” that the items they want to seize were involved in criminal activity.

That’s not quite the standard used in gaining a criminal conviction where a judge or jury must believe someone is guilty “beyond a reasonable doubt” before depriving a person of his or her freedom.


But it’s much more than exists now, where all a prosecutor need show is that the “preponderance of the evidence” shows a link between the property and a crime. That is basically a balancing test, meaning all a judge need find is that the evidence shows it’s more likely than not there is a link.

And what makes this change so important is that police and prosecutors can take someone’s property without ever charging the owner with actually committing a crime, much less actually getting a conviction.

But Rep. Eddie Farnsworth, R-Gilbert, who has championed the changes, said the potentially more far-reaching provisions will remove the financial impediment that now exists for people to fight to get back property they believe was unfairly and illegally seized.

Monday’s vote pretty much assures that the measure will reach the desk of Gov. Doug Ducey. The House, which already has given its approval to virtually identical language, simply needs to ratify the changes made in the Senate.

An aide to Ducey said the governor wants to review the bill before making a decision.

What remains to be seen is whether prosecutors seek a veto.

A spokeswoman for Maricopa County Attorney Bill Montgomery declined to comment. And Deputy Pima County Attorney Kathleen Mayer said she has not yet discussed the issue with Barbara LaWall, her boss.

At the center of the issue is that civil forfeiture law. It was designed both to ensure that criminal enterprises do not get to keep the property they acquire from the proceeds of illegal activities as well as to cripple these enterprises by taking away their assets. 

But there have been increasing concerns that police and prosecutors are padding their finances by going after property in minor situations, counting on people to give up without a fight because of the financial risks of losing….

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