Tucson handyman Kevin McBride was hard at work one Friday last May when his girlfriend offered to get him a cold drink from a convenience store. She took his Jeep, his sole means of transportation and the basis of his livelihood. Then the cops took his Jeep, and local prosecutors are now demanding a $1,900 ransom before he can get it back.
This sort of shakedown would be clearly felonious if ordinary criminals attempted it. But as McBride discovered, it is legal under Arizona's civil asset forfeiture law. The cops said McBride's girlfriend had used his Jeep to sell a small amount of marijuana to an undercover officer for $25. Although the charges against her were dropped, the Jeep is still being held as a party to that alleged offense, and McBride has to pay for the privilege of getting his property back.
"They're extorting money from me," McBride says, "and I didn't do anything. I don't know how they can do that. You know, we don't live in a free country anymore, because that's not freedom."
Ordinarily, someone in McBride's position would be inclined to give in, since challenging the forfeiture would cost thousands of dollars in legal fees, and there would be no guarantee of winning. But the Goldwater Institute is representing McBride pro bono, arguing that Arizona's system of legalized theft violates the Fifth Amendment's guarantee of due process and the Eighth Amendment's ban on excessive fines.
When he began to wonder what was keeping his girlfriend, McBride hitched a ride to the convenience store, where he was dismayed to find police loading his Jeep onto a flatbed truck. When he asked the cops what was going on, he was handed a phone number to call for an explanation. He tried the number for three weeks before someone answered, which is when he found out that his Jeep had been seized because of the alleged marijuana sale.
Under civil forfeiture law, neither the fact that McBride was not accused of a crime nor the fact that the charges against his girlfriend were dropped made any difference. Officially, the Jeep itself is accused of participating in criminal activity. If McBride could scrape together the money for a lawyer to challenge the forfeiture, the government would have to show by "clear and convincing evidence" that the Jeep was involved in a penny-ante marijuana sale.
That is actually an improvement on the standard that applied before Arizona amended its forfeiture law in 2017, when "a preponderance of the evidence" (any probability greater than 50 percent) was enough. But the current standard is still a much lighter burden than proof beyond a reasonable doubt, the rule that applies in criminal cases. And unlike criminal defendants, innocent owners like McBride have no right to court-appointed counsel, which makes it much easier to pressure them into "mitigation" agreements like the one proposed by the Pima County Attorney's Office.
"An outright return of the vehicle is inappropriate in this case," Deputy County Attorney Kevin Krejci asserted in an August 11 letter to McBride. Instead, "the state offers the following mitigation of forfeiture," Krejci wrote, saying the Jeep "would be released from forfeiture for $1,900.00." But "if we cannot agree on this mitigation, then the state will proceed with a Declaration of Forfeiture." Since Arizona assigns 100 percent of forfeiture proceeds to the law enforcement agencies responsible for the seizure, this proposal is tantamount to demanding a bribe for the return of stolen property.