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An Arizona bill requiring police and prosecutors to get a criminal conviction before they could attempt to force defendants to forfeit their assets died Thursday at the hands of a bloc of mostly Democratic lawmakers.

Civil asset forfeiture is a mechanism that lets law enforcement seize and keep the assets of people believed to have committed crimes. Many states do not require defendants to actually be convicted—or sometimes even charged—with a crime before police take their property. People are thus put in the position of having to prove their innocence in order to get the money back, subverting due process. Meanwhile, police agencies keep the money they seize and sell the other property they take, thus filling in gaps in their budgets.

This leads inevitably to corruption, as cops look for a pretext to stop people, search them or their vehicles, and—if they find large sums of cash or other valuable property—claim it simply must be proceeds from drug trafficking and try to keep it for themselves. This process was sold to the public as a way to fight drug cartels and other criminal kingpins, but in reality most forfeitures are for relatively small amounts taken from underprivileged people who lack the resources to fight back.

Some states have started reforming these laws to require stronger evidentiary thresholds before police could force forfeitures. And some states have changed the rules to demand a criminal conviction before police try to take somebody’s property.

That was what S.B. 1556 in Arizona attempted to accomplish. The state had already reformed its civil asset forfeiture laws back in 2017, requiring a tougher evidence threshold and also keeping cops from bypassing state restrictions on forfeitures by partnering up with the Justice Department. S.B. 1556, sponsored by state Sen. Eddie Farnsworth (R–Gilbert), would tighten the rules further: It flat out requires a criminal conviction before police and prosecutors can attempt a forfeiture, with some exceptions if a defendant dies, flees the state, or abandon the property. The bill passed the Senate unanimously in March.

Then the coronavirus pandemic hit and the state legislature shut down. The Senate ended its session entirely; the House took up some bills this week before ending its session too. The forfeiture reform bill made it out committee earlier in the week, with a small number of Democrats voting no. But when the full House voted on Thursday afternoon, all 29 Democrats, plus 8 Republicans, voted against the legislation.

The partisan politics of asset forfeiture are not exactly cut and dried. In most states where reforms have passed, many Democrats support them in order to stop police from targeting minorities and the poor; other Dems side with police and prosecutors. Conversely, some Republicans support reforms, citing the abandonment of due process and the violation of people’s property rights. But again, some Republicans take the other side.

What’s extremely unusual is for all the Democrats to vote against a forfeiture reform bill, especially after the same legislation passed out of the Senate unanimously. In their explanation for why they voted no, a couple of legislators said the quiet part loud: The pandemic is hurting government budgets, and they don’t want to give up the revenue.

Rep. Kirsten Engel (D–Tucson) said that she understands that asset forfeiture abuse occurs but—in the words of the Arizona Capitol Times—”she could not support such a change without also finding a way to ensure that counties have the money they need. She said the state is in no position to do that now, partly because it already has adopted a budget for the coming fiscal year and partly because the COVID-19 pandemic is going to slash anticipated state revenues by $1 billion or more.” In other words, she wants to use civil forfeiture to finance police departments even if it means the disadvantaged get the blunt end of the stick.

Another lawmaker, Diego Rodriguez (D–Phoenix), said that the money from asset forfeiture proceedings also helps fund public defenders, so cutting that financial stream might cause county supervisors to cut funding for those offices. Paul Avelar, managing attorney for the Institute for Justice’s Arizona office, tells Reason that asset forfeiture money does not, in fact, pay for public defenders in Arizona. Indeed, regulations around forfeiture funds actually prohibit the money from going to anybody but law enforcement.

Regardless, a revenue stream is a thoroughly abhorrent justification for taking people’s property actually convicting them of a crime.

“That as in an indictment of the forfeiture process itself,” Avelar says. “Due process does not turn on government funding. That’s unconstitutional, insane, disgusting.”

The Twitter account for Americans for Tax Reform (which endorsed S.B. 1556) bluntly responded to justifications like Engel’s: “Theft is not okay just because the state budgeted around it.”

Engel must have gotten the message that her argument wasn’t flying. Today she reverted to the familiar claim that asset forfeiture helps punish the bad guys:

We don't want to shove through a bill that abets the efforts of human traffickers, scam artists, and drug cartels to hold onto their dirty money and hurt their victims yet again. We agree reforms are needed but this bill was not the way forward. https://t.co/YjMo7spRRm

— Rep. Kirsten Engel (@EngelForArizona) May 22, 2020

But of course, the reason that people have turned against civil asset forfeiture is because this claim turned out to be untrue. It’s frequently not being used against criminals, because, in fact, hundreds of people being subjected to it in Arizona are never convicted of any crimes.

Engel’s initial justification is a more accurate assessment of why civil forfeiture persists. A 2019 study from the Institute for Justice shows that the more financial stress a community is in, the more forfeiture revenue the police take. Every percentage point increase in a community’s unemployment led to nearly a 10 percent increase in the number of assets seized. During the last recession, asset forfeiture revenues skyrocketed as municipal revenues dropped in some cities and towns.

Did the forfeitures help control crime at the same time? Nope: The Institute for Justice’s report also found that asset forfeiture did not reduce either crime or drug use.

Lauren Krisai, a senior policy analyst at Justice Action Network, was frustrated by the bill’s strange defeat.

“It’s disappointing that House Democrats put petty politics over good policy that they actually agree with,” Krisai says. “This bill would have protected the most vulnerable Arizonans from having their property seized without due process. That’s something that you’d think both parties would agree to. “

After killing the bill, the House adjourned for the session. So the vote cannot be reconsidered. The legislation will have to be reintroduced next term.

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Many law schools may decide to bring 1Ls on campus, but hold 2L and 3L classes online. The thinking here is at once compassionate, but also pragmatic. The first-year of law school is a surreal experience. The pressure of classes forms something of a crucible: students are forced to acclimate to a brand new environment in a short period of time. By the time students get to the second year, they have developed a certain familiarity with the process, and are able to deal with classes more efficiently–even though they do not prepare as well for class. I see a world of difference between Property I students (in the second semester) and Property II students (in the third semester). If law schools have to make tough choices about who to admit on campus, objectively, 1Ls should be given priority.

There is also a pragmatic dimension to this choice. Incoming 1Ls, who feel they will be shortchanged by online instruction, may not enroll. Maybe they will decide to defer a year. Or maybe they’ll pick a law school that promises in-person instruction. Rural campuses over urban campuses may be more desirable. These promises should be taken with some caution. Shut-down orders may come in October, requiring everyone to go back online. And the experience in class may soon become intolerable. But, incoming 1Ls demand in-person instruction. And law schools, dependent on tuition, will be pressured to oblige.

But what about 2Ls and 3Ls? Do they need the same in-person experience? The old adage may have some truth: 1L scares you to death; 2L works you to death; and 3L bores you to death. But 2Ls and 3Ls will be quite upset if their classes move entirely online. What can they do? Some will demand tuition refunds. This option is not viable. A school’s costs stay roughly the same, whether operations are inside our outside the building. You can only save so much money by turning off the lights and lowering the air conditioner.

For sure, some students will threaten to transfer to another law school. Let me voice some skepticism for that option. As a general matter, transfers pose several risks. In normal times, transfers after 1Ls have limited opportunities. There are fewer slots for law review and moot court for transfers. Fall recruiting may be limited due to the timing. And credits may not transfer precisely, requiring students to retake certain classes. Also, grading curves vary, so your class rank may not transfer accurately to your new school. Students also lose the chance to gain recommenders from 1L professors, whom they get to know well. (I am always skeptical when a student who transfers out asks me to write a letter of recommendation.) Plus, you are entering a new school, without any network of support. You may not know any students, and most study groups and cliques have already formed. Often, teachers at lower-ranked institutions may provide more personalized attention than those at higher-ranked institutions. (A topic for another day.). Students should not be so certain that things will get better. The grass is not always greener on the other side of the U.S. News & World Report rankings.

But transfers now in the time of COVID-19 are especially risky. First, consider the timing. No school can guarantee they will have any in-person instruction. The standard line now is “We plan to be on campus.” Plans are great. Students would be foolish to transfer schools based on a “plan.” There are costs to apply, and costs to move your life to a new campus. Second, even if some upper-level classes are in-person, others may not be. This decision will turn on the availability of faculty–many of whom are in at-risk groups–as well as availability of space. No matter where you go to school, you may still be stuck with a bulk of Zoom classes. Third, if you transfer, you may never meet your professors in person. At least at your current institution, you will have built some personal bonds. But at Zoom University, you will have no connections. Fourth, I fully expect most jurisdictions to issue shut-down orders at some point this fall. No matter where you transfer, you will finish the semester online. So why bother? Threats to transfer are empty. Students would be advised to stay where they have a network.

The more credible threat is students ask to defer their second or third years till the situation stabilizes. In other words, they simply opt out of the law school until the current crisis passes. This plan may make sense if we are sure that this situation will be over next year. But who knows? We may be stuck in Zoom purgatory for two or three years. Corona will not vanish quickly. Outbreaks will come in waves. Taking such a big gap between first-year and second-year will make re-acclimation very difficult. Think how rusty students are after 1L summer break. Imagine taking a two year break between classes! And good luck remembering anything from 1L for the Bar if you take it six years later.

I understand the frustration from students. I get it. They did not sign up for a correspondence course, while paying full-freight tuition. For those already in this mess, where possible, they should push through to graduation. For incoming 1Ls, read with caution any promise for in-person classes. I think ultimately, most law schools will be in the same boat.

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

This week, the Minnesota Legislature passed a bill that will allow hair and makeup artists who want to earn a living outside a salon—at weddings, proms, and elsewhere—to do so once they’ve finished a four-hour sanitation course. Currently, the state Board of Cosmetologist Examiners imposes a labyrinth of licensing requirements that takes hundreds of hours to complete and that it polices with heavy fines. Gov. Walz, sign this bill! Read more here.

• Watchdog group sends the Secret Service a FOIA request, seeking records of visitors to the White House and President Trump’s Mar-a-Lago home. The Secret Service demurs, and the watchdog sues. Second Circuit: Interpreting FOIA to require the president to turn over the identity of everyone he met with at home and work over a seven-week period would cause some pretty big separation of powers problems, and we decline to do so.
• Between February and April of this year, 10 of the 11 candidates for the Democratic presidential nomination terminated or suspended their campaigns. Ordinarily, they still would have appeared on the primary ballot in New York. But in April, New York passes a law authorizing the state’s board of elections to remove those candidates from the ballot. And because only one candidate remained, the state then canceled the primary. Andrew Yang (among others): Changing the rules of the game in that way violates the First and Fourteenth Amendments. District court: That’s probably right, so the state must restore all the candidates to the ballot and hold the primary. Second Circuit: Just so.
• Allegation: Industrial waste is emptied into floor drains at Hoosick Falls, N.Y. plastics facility, contaminating surrounding properties, the municipal water supply, and private wells. In a trio of opinions, the Second Circuit allows a variety of claims and a putative class action to proceed. However, a local business that claims only loss of income (without a property damage claim) cannot proceed; caselaw (based on construction-related collapses in Midtown Manhattan) forecloses negligence suits that allege purely economic losses.
• Diabetic inmate submits 12 grievances over the course of three months at Camp Hill, Penn. prison because medical care for festering wound on his already-partially amputated leg is not forthcoming. But staff give him incorrect advice on how to file a grievance and withhold the handbook that explains the process. Ultimately, each grievance is rejected, mostly for technical reasons, and more of his leg must be amputated. A violation of the Constitution or the Americans with Disabilities Act? Corrections officials: Well, you didn’t properly appeal the grievance rejections, so you can’t sue. Third Circuit: The suit should not have been dismissed.
• Madisonville, Tex. police pull over a car for speeding, search it, and find meth. They arrest the pregnant driver, and she loses custody of her kids until charges are dropped more than a month later. Yikes! Her ex-husband, a then-Madisonville cop, planted the drugs! He’s convicted, and she’s awarded monetary damages against him after trial. Fifth Circuit: And two of her claims against the city should not have been dismissed.
• In 2018, Rutherford County, Tenn. law enforcement undertake “Operation Candy Crush,” raiding 23 stores that sell gummies, vape juice, and other products containing cannabidiol, a derivative of marijuana. They padlock the stores, file criminal charges, prep the civil forfeiture machine, and hold a press conference about protecting the children. Yikes! Cannabidiol is legal under state and federal law. Sixth Circuit: No absolute or qualified immunity for the sheriff or prosecutors.
• Fire starts in Lawrence, Mich. home of couple who are about to divorce. The wife flees the house and hits her husband, who was on fire, with a van in the driveway. He dies. Murder? Prosecution: The wife, who was having an affair, said as much to jailhouse informants. Defense: Both of whom admitted to having mental health issues. Moreover, two of the husband’s previous houses had burned down; he started the fire. A jury convicts. Sixth Circuit: New trial. The prosecutor committed misconduct, and the wife’s lawyer was unconstitutionally deficient. Dissent: Cases like this are why Congress passed AEDPA. “All that was missing [from the evidence against the defendant] was a film of the mariticide.”
• In attempt to force residents to pay their traffic debt, Tennessee suspends driver’s licenses even if drivers are too poor to pay. Which is irrational, it is argued, imposing hardship on hundreds of thousands of people while furthering no gov’t interests. Sixth Circuit: We upheld a similar Michigan law recently and so are bound to do so here. Concurrence: The law is cruel, unwise, and unconstitutional. (We filed an amicus brief in the case.)
• Law enforcement learn that child porn has been uploaded from a Clark County, Ky. resident’s IP address. They arrest the man and imprison him for 14 months before dropping the case. For much of that time, at least one investigating officer knew that a forensic test of the man’s electronic devices had uncovered no child porn. Sixth Circuit panel (over partial dissent): The man’s malicious prosecution claim can proceed.
• While conducting a late-night search for a fugitive, Flint, Mich. police raise the ire of a neighboring homeowner. Their conversation—recorded on the homeowner’s cell phone—reveals an encounter that starts out salty and ends up spicy when police pepper spray and arrest the homeowner for disturbing the peace. Prosecutors ultimately drop the charges. The homeowner sues the police. Do they get qualified immunity? Sixth Circuit: Depends on whether he was actually disturbing the peace, which involves a contested question of fact. A jury can sort it out.
• Polk County, Wisc. prison guard repeatedly rapes two inmates. (He goes to prison.) Jury: The guard and county must pay each woman $2 mil. Seventh Circuit (2019): The guard violated county policy and took steps to conceal his misconduct, so while he’s liable, the county is not. Seventh Circuit (en banc, over a pair of dissents): The county must also pay. Officials failed to punish a prior sexual harasser, tolerated sexual talk about inmates among guards, and didn’t impose certain low-cost safeguards against prison rape. (We talked about this case on the podcast and filed an amicus urging en banc review.)
• In fifth trial, man is convicted of 1991 Ozark, Mo. murder on the strength of jailhouse informant (who lied about her dozens of convictions (including forgery and fraud) and the fact that prosecutors dismissed a charge against her in exchange for her testimony) and blood spatter analysis (the state’s expert said the small spot of victim’s blood on the defendant’s shirt was more consistent with the defendant stabbing the victim 50 times than with the defendant’s testimony that he found the body). District court: His execution is stayed for 30 days to allow for review of new evidence of innocence. Eighth Circuit: Reversed. There’s no new evidence. The jury was told of the informant’s disreputable history, and the defense made a strategic decision not to call its own blood spatter expert at trial. (Ed. note: He was executed Tuesday night in the country’s first pandemic-era, socially distanced execution.)
• In the Eighth Circuit, a dispute in the world of competitive dart throwing leads to a tour of Missouri defamation law. The unsurprising result? Potentially defamatory statements bear their reasonable meanings, not their innocent ones.
• Under NCAA rules, student athletes are (mostly) prohibited from being compensated for anything past the cost of attendance at their college or university. Does this violate antitrust law by rigging the market for student-athlete labor? Indeed it does, says the Ninth Circuit, but it’s still okay to prohibit cash payments. Concurrence: These kids are out there getting brain damage for our entertainment; just pay them already.
• After Castle Rock, Colo. council member is startled by a door-to-door solicitor while working in his garage, officials ban such solicitation in the evening. Tenth Circuit: And the First Amendment bans the ban.
• And in en banc news, the Sixth Circuit will reconsider its ruling that there is a fundamental due process right to education. (We talked about the case on the podcast. Meanwhile, the litigants have tentatively settled the case, and an attorney for the students believes they “are done with the courtroom.”)

Friends, the Georgia Supreme Court has “long interpreted the Georgia Constitution as protecting a right to work in one’s chosen profession free from unreasonable government interference.” So wrote the Court this Monday, reviving an IJ lawsuit over a 2016 law imposing extensive, prohibitive-for-most licensing requirements on lactation consultants, who provide breastfeeding advice and support to new mothers. The law, which was passed at the behest of a small group of consultants who mostly already meet its requirements, would put hundreds of other consultants, many of whom serve low-income, rural, and minority communities, out of work and force those communities to go without services. All this despite no evidence whatsoever that licensing protects mothers and babies; indeed, no other state imposes restrictions as severe as Georgia’s. Click here to read more. Is Georgia’s Constitution some sort of crazy outlier? Not at all. On Tuesday, the Pennsylvania Supreme Court ruled that economic restrictions must have a “real and substantial relationship” to a legitimate purpose and not be “unduly oppressive or patently beyond the necessities of the case.” This standard, the Court confirmed, is sterner than the federal rational basis test. The decision revives an IJ lawsuit on behalf of a vacation rental property manager who state officials say must, among other unreasonable requirements, spend three years unpaid as an apprentice in order to obtain a real estate broker’s license, even though that has nothing to do with the work she actually does. Click here to read more.

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