Category: reason

President Joe Biden’s modest rollback of former President Donald Trump’s border policies is attracting some novel legal challenges from anti-immigrant conservatives.

On Sunday, Arizona Attorney General Mark Brnovich sued the Biden administration in the U.S. District Court of Arizona over the federal government’s pause on border wall construction and the decision to end a policy requiring asylum seekers to remain in Mexico.

Both policy changes, argues Brnovich, should have had to undergo the kinds of environmental review normally required of federal infrastructure projects because they would increase Arizona’s population.

“Migrants (like everyone else) need housing, infrastructure, hospitals, and schools. They drive cars, purchase goods, and use public parks and other facilities. Their actions also directly result in the release of pollutants, carbon dioxide, and other greenhouse gases,” reads the complaint. “All of these activities have significant environment impact.”

His lawsuit takes issue with two specific actions of the Biden administration.

The first is a January 20 executive order freezing border wall construction and redirecting border wall funding to other priorities. The second is the administration’s February decision to start unwinding Trump’s Migrant Protection Protocol program (MPP) which required people who showed up at the southern border seeking asylum to return to Mexico while they wait for a court hearing. Because of the current administration’s changes, many of the people kept on the Mexico side of the border because of MPP are now being allowed into the U.S.

Both of those policy changes have proven controversial. The Government Accountability Office, the watchdog arm of Congress, said in March that it would examine the legality of the president’s pause of border wall funding.

The attorneys general of Texas and Missouri have also sued the Biden administration over its unwinding of MPP. Those lawsuits make more traditional legal claims that the administration’s decision was “arbitrary and capricious” and didn’t give state governments enough notice.

Brnovich is making the more unusual argument that the administration’s course change on immigration violates the National Environmental Policy Act (NEPA).

NEPA requires that federal agencies study the impacts of their actions on the environment, whether that’s funding a new highway or permitting a new power plant.

These environmental studies can be quite onerous. The average Environmental Impact Statement (EIS)—the most rigorous level of analysis required by NEPA—takes 4.5 years on average and results in reports 669 pages long on average.

NEPA also allows third parties to sue over environmental reports they feel didn’t adequately examine this or that environmental impact, stretching things out even longer.

Streamlining the NEPA process was a signature goal of the Trump administration. In July 2020, it finalized a number of administrative reforms that limited what environmental impacts federal agencies would have to consider and expanded the scope of how much federal involvement was necessary to trigger NEPA requirements.

Somewhat ironically, Brnovich is now looking to expand what kinds of federal actions should be subject to NEPA in order to save several other signature Trump administration immigration policies.

“As a direct and foreseeable consequence of the gaps in the nation’s border wall… migrants have been crossing the border in Arizona in greater numbers than ever before,” reads Brnovich’s complaint, citing the 171,000 migrants encountered by Customs and Border Patrol (CBP) on the border in March.

“Thousands of individuals have been released and are being released into Arizona as a result of the termination of this program that otherwise would never have entered the country,” continues the complaint in respect to the MPP unwinding. “Despite the intent to cause this outcome, at no time did Defendants undertake any analysis of the environmental impacts on the human environment in Arizona of this additional population.”

Brnovich’s lawsuit asks that Biden’s border wall pause and changes to MPP be overturned until a full Environmental Impact Statement is prepared on the consequences of all those migrants being allowed into his state.

Beginning in 2016, a collection of anti-immigrant groups, ranching associations, and conservation districts sued the then-Obama administration over its failure to subject its own immigration policies to NEPA review. That lawsuit was dismissed by a U.S. District Court in 2020 and is now being appealed.

The Arizona lawsuit points to a Ninth Circuit Court of Appeals decision in a NEPA case that held that an Environmental Impact Study sometimes needs to account for population growth.

Even with that decision, “it seems rather a jump to say that review is therefore needed for the whole class of government actions that invite an increase in population, whether or not directed at the development of a particular tract of land or group of tracts,” says Walter Olson, a legal scholar at the Cato Institute.

“Arizona actively encourages in-migration by promoting the attractiveness of the state as a place to live and do business. Should it have to conduct an environmental impact study assessing the impact on development and limited resources before it does this?” Olson says.

In an interview with Fox and Friends, Brnovich seemed to acknowledge the trollish nature of his lawsuit, saying that NEPA “is what the left always uses to stop highway projects and airport reconstruction.”

“We are saying that by stopping the wall construction they are violating NEPA by allowing more and more people coming into this country and that’s having a devastating impact on our environment and it’s also impacting the increase in population which will have all sorts of impacts down the road,” he continued, adding that migrants crossing over the border also litter a lot.

Arizona’s lawsuit is still fresh and the government has yet to respond. It will remain to be seen if a court will entertain the attorney general’s novel invocation of NEPA.

Legal merits aside, it is deeply concerning that some elected officials think we should be treating individual humans as pollutants by virtue of them coming from another country.

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The defense in Derek Chauvin’s murder trial yesterday presented testimony from a use-of-force expert who said the former Minneapolis police officer’s “interactions” with George Floyd “were following his training, following current practices in policing, and were objectively reasonable.” That conclusion contradicted the testimony of the city’s police chief, other supervisors, and other use-of-force experts. It was also highly implausible, relying on dubious definitions, eyebrow-raising assumptions, and the omission of crucial details.

Incredibly, former police officer Barry Brodd testified that pinning a handcuffed Floyd facedown on the pavement for nine and a half minutes did not constitute a use of force. “I don’t consider a prone control as a use of force,” he said. “The maintaining of the prone control, to me, is not a use of force…because it’s a control technique. It doesn’t hurt. You’ve put the suspect in a position where it’s safe for you, the officer, safe for them, the suspect, and you’re using minimal effort to keep them on the ground.”

While Chauvin was using this “control technique,” he had one knee on Floyd’s neck and the other on his arm or back. Officer J. Alexander Kueng also was applying pressure to Floyd’s back, while Officer Thomas Lane was holding down his legs. But according to Brodd, the officers were not using force, because they were not hurting Floyd.

Yet Brodd admitted during cross-examination that pressing Floyd against the pavement “could produce pain,” in which case, according to his idiosyncratic definition, it would qualify as a use of force. As prosecutor Steve Schleicher pointed out, Floyd repeatedly complained that he was in pain. He said his neck, stomach, and “everything” hurt. Hennepin County Chief Medical Examiner Andrew Baker testified that Floyd had abrasions on his cheek and shoulder from contact with the pavement.

Los Angles Police Department Sgt. Jody Snider, a use-of-force expert, testified that the officers used “pain compliance” techniques on Floyd’s hands and wrists. “If the officers were manipulating Mr. Floyd’s hands in a way that would create pain,” Brodd conceded, “then I would say yes, that would be a use of force.”

In any case, the Minneapolis Police Department’s definition of force does not require the infliction of pain. “Do you accept that the Minneapolis Police Department generally defines force to include restraint?” Schleicher asked. Brodd acknowledged that Schleicher was right about that.

Given that Chauvin used force against Floyd (a point I did not realize was up for debate until I watched Brodd’s testimony), was that use of force justified in the circumstances? While addressing that question, Brodd, prodded by defense attorney Eric Nelson, introduced several irrelevancies.

The officers believed that Floyd, who had ingested black-market “Percocet” tablets that contained fentanyl and methamphetamine, was under the influence of drugs. “Drug-influenced” suspects, Brodd averred, “don’t feel pain” and “may have superhuman strength”—an old canard with racist roots that police tend to drag out when they are accused of using excessive force.

Even drug warriors who still promote this myth generally do not claim that opioids like fentanyl make people aggressive or enable them to overpower several police officers at once. And while they do make that claim about methamphetamine, prior testimony indicated that the amount of that drug consumed by Floyd was comparable to a single prescribed dose. Superhuman strength and insensitivity to pain are not commonly noted as side effects of Desoxyn or of other oral stimulants with similar effects, such as Adderall and Ritalin.

In any event, Floyd was not displaying the characteristics that Brodd attributes to “drug-influenced persons” during his prone restraint. Far from demonstrating superhuman strength, he was at the cops’ mercy, and he certainly was not insensible to pain, judging from his repeated complaints that the officers were hurting him. Yet the defense seems to think that introducing discredited notions about how people behave when they are “on something” will distract jurors from what actually happened in this case.

Speaking of distraction, Brodd reinforced the defense argument that bystanders who objected to the officers’ treatment of Floyd drew Chauvin’s attention away from the man under his knee. That claim is inconsistent with much of the video record, which shows Chauvin  looking at Floyd, acknowledging his complaints, and talking to his colleagues about how Floyd should be treated.

The defense makes it sound as if the officers were facing an incipient riot. But for much of the time, the bystanders were simply watching the encounter and recording it on their cellphones. Even when some of them were moved to criticize the officers’ conduct and express concern about Floyd’s welfare, they were not violent and did not make any threats. And regardless of what the bystanders were doing, as Schleicher pointed out and Brodd agreed, their behavior cannot legally justify the use of force against Floyd.

Nor can it justify the officers’ failure to perform CPR after Floyd became unconscious and no longer had a detectable pulse. Brodd suggested it was reasonable for them to “wait for the professionals to show up.” But he also acknowledged that they had a duty to care for Floyd—a duty that was not obviated by the fact that an ambulance was on the way.

Brodd also noted that Floyd, who initially seemed to be having a panic attack, struggled with Kueng and Lane when they tried to force him into the back of their squad car. Floyd said he was claustrophobic, complained that he could not breathe, and asked to ride in the front seat. But once Kueng and Lane pulled him out of the car and onto the street, Floyd, at this point handcuffed and kneeling, stopped struggling and thanked them.

That was when Chauvin, Kueng, and Lane tackled Floyd and pinned him to the ground on his stomach, keeping him there despite his complaints that he was having trouble breathing and despite bystanders’ warnings that his life was in danger. Chauvin continued kneeling on Floyd even after he stopped talking, became unresponsive, and no longer had a detectable pulse. The fact that Floyd had earlier resisted Kueng and Lane cannot justify this continued use of force.

Brodd claimed that Floyd was still resisting the officers even when they had him pinned. But his definition of resistance is broad:

Brodd: It appeared to me in that video that he was still struggling.

Schleicher: Struggling or writhing?

Brodd: I don’t know the difference.

Schleicher: Would a reasonable police officer on the scene consider whether somebody is actively resisting or writhing on the ground because they can’t breathe?

Brodd responded that it was reasonable to discount Floyd’s 27 complaints that he could not breathe because he had said something similar during the struggle inside the squad car. Schleicher suggested that it was not reasonable to ignore Floyd’s complaints once the officers were pressing him against the pavement, a different context in which it was less plausible that Floyd was faking.

Brodd’s idea of how Floyd would have behaved if he were “perfectly compliant” underlines how police interpret distress as resistance:

Brodd: A compliant person would have both their hands in the small of their back and just be resting comfortably…He is still moving around.

Schleicher: Did you say “resting comfortably”?

Brodd: Or lying comfortably.

Schleicher: Resting comfortably on the pavement?

Brodd: Yes.

Schleicher: At this point in time…he’s attempting to breathe by shoving his shoulder into the pavement.

Brodd: I was describing what the signs of a perfectly compliant person would be.

Schleicher: So attempting to breathe while restrained is being slightly noncompliant?

Brodd: No.

Brodd’s discussion of “positional asphyxia,” which is what the prosecution says killed Floyd, likewise had an air of unreality. He initially suggested that the hazard is relevant only when police are dealing with an “extremely obese” suspect whose body weight would press against his lungs when he lies on his stomach. But during cross-examination, he conceded that there could be a risk of positional asphyxia when police apply their own body weight to a thinner person in that position. He also acknowledged that the Minneapolis police officers are trained to move suspects to a “side recovery position” because of that danger, which he said is widely recognized by police.

Lane twice suggested that Floyd should be rolled onto his side, but Chauvin flatly rejected the idea. “In this situation, there [were] space limitations,” Brodd said. “Mr. Floyd was butted up against the tire of the patrol car. There was traffic still driving down the street. There were crowd issues that took the attention of the officers. Mr. Floyd was still somewhat resisting. So I think those were relatively valid reasons to keep him in the prone [position].” According to prosecution witnesses, including the police chief, the decision that Brodd calls “relatively valid” was objectively unreasonable and a clear violation of department policy.

Even by Brodd’s account, Floyd was “actively resisting” or “struggling against the officers” for “a couple of minutes.” Yet Chauvin kept kneeling on Floyd for an additional seven and a half minutes. At one point, Lane said, “He’s passing out.” Brodd conceded that Floyd did not seem to be resisting after he lost consciousness. Yet Chauvin maintained his position over Floyd for nearly five minutes after he became unresponsive, even after Kueng said he could not find a pulse.

While the prosecution says the prolonged prone restraint killed Floyd, Brodd said it was for his own good. Given an intoxicated suspect’s “potential erratic behavior, going from compliant to noncompliant, not feeling any pain, potentially having superhuman strength,” he averred, “it’s just safer for the officer and for the suspect to keep them in that prone control.”

How is it safer for the suspect? “If they were to get up and run, handcuffed,” Brodd said, they could “trip and fall, sustain facial injuries, other injuries. On the ground, their mobility is reduced…and their ability to hurt themselves is reduced.” If you believe Brodd, the cops killed Floyd to stop him from hurting himself.

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The case is yesterday’s U.S. v. Koziol, written by Judge Bridget Bade and joined by Judge Carlos Bea and District Judge Gershwin Drain (E.D. Mich.):

Benjamin Koziol was convicted of attempted extortion under the Hobbs Act, 18 U.S.C.
§ 1951(a), for threatening to file suit against a well-known entertainer asserting salacious and scandalous allegations of sexual harassment, sexual assault, and assault and battery if the entertainer did not settle with Koziol for $1,000,000.

On appeal, Koziol argues that … the threat of litigation, even a baseless and bad faith threat, cannot constitute “wrongful” conduct under the Hobbs Act…. We affirm [the] conviction ….

Here, there was ample evidence at trial from which a rational jury could conclude that Koziol knew his allegations were baseless and that he had no right to obtain any money from the entertainer. As an initial matter, the uncontested evidence at trial established that it was the manager, not the entertainer, who was present at Sweet’s apartment on the night of the massage. Several months after the manager negotiated a settlement with Koziol’s wife, Sweet, Koziol accused the manager of “verbally and physically” assaulting him, even though Koziol was not mentioned in the detailed
demand letter that Saadian, Sweet’s attorney, previously sent to Wright, the manager’s attorney.

When Koziol made these allegations against the manager, Koziol was aware that the
manager had settled with Sweet and he claimed that Saadian had also represented him. After Wright refused any attempts to extract additional money from her client, Koziol changed his story to accuse the entertainer. He later falsely claimed that he had “never accused [the manager] of anything!” And in his threats to sue the entertainer, Koziol contradicted his earlier allegations and stated that the manager “was never at my apartment and has nothing to do with this case.”

Moreover, the uncontested evidence also established the entertainer had never even met Koziol or Sweet. Nonetheless, despite his earlier claims that the manager was the massage customer who assaulted him, Koziol changed his story and claimed that he confronted the entertainer at the apartment on the night of the massage and spoke to him, asserted that “by the look on [the entertainer’s] face” he was “obviously surprised to see” Koziol, and accused the entertainer of punching him in the face and knocking him unconscious. Koziol also claimed that he “immediately recognized” the entertainer when he searched for him on the internet. From this evidence, a rational jury could find that Koziol knew that the manager, not the entertainer, was the massage customer and that Koziol knew he did not have a claim against the entertainer.

Koziol also used falsified evidence (the photograph of his purported injuries) to bolster his threats against the entertainer, he lied about the existence of evidence that supported his claims (the video that purportedly showed the entertainer at Sweet’s apartment the night of the massage). And in the demand letter that Koziol’s wife sent to the manager through her attorney, she also claimed that she had a video showing the massage customer at the apartment—but stated that the video showed the manager at the apartment. Again, from this evidence, a rational jury could conclude that Koziol knew he had no lawful claim against the entertainer.

Among other things, the court concludes that such threats are unprotected by the Petition Clause (which does prevent many kinds of liability based on non-sham litigation):

Koziol fabricated evidence, lied about the existence of evidence, and knew that his claims were baseless, all of which further demonstrates that his threats to file a lawsuit were made with an improper motive. From this evidence, we conclude that Koziol knew that his threatened lawsuit could never prove fruitful if brought before a jury, which is why he attempted to intimidate the entertainer into a settlement based on admittedly falsified evidence and an implied threat that scandalous allegations in a publicly filed lawsuit would irrevocably damage the entertainer’s reputation and livelihood.

Therefore, we reject Koziol’s argument that his litigation threats did not rise to the level of a sham as a matter of law and conclude that the Noerr–Pennington doctrine did not immunize Koziol’s threats of sham litigation.

Thanks to Howard Bashman (How Appealing) for the pointer. For a similar case, though one in which the threatened lawsuit wouldn’t have damaged the defendant’s reputation as much, see this 2009 post. A District Court decision names the target of the extortion scheme (who appears to have been entirely innocent here), and so does a press account about the Ninth Circuit decision. News reports about the target (unrelated to the extortion case) do suggest that he is known in part for traditional sexual morality and religiosity, which might explain why the extortionate threats may have been seen as especially potentially damaging.

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The specter of a federal “assault weapons” ban is once again haunting the land. Here are three reasons why any such federal action is a terrible idea.

1. There is no agreed upon definition of “assault weapon.”

Politicians looking to enact stricter gun control laws have always struggled to define what exactly constitutes an “assault weapon.” It’s like the famous line about identifying pornography: “I know it when I see it.” Unfortunately, this feckless approach guided the drafting of the 1994 Assault Weapons Ban and is once again threatening the rights guaranteed by the Second Amendment. 

Consider these two versions of the Ruger Mini-14 from a technical perspective:

Both are mechanically identical. They fire the same cartridge; they have the same effective range, the same rate of fire, and the same mechanical accuracy. But under the 1994 Assault Weapons Ban (AWB), only one of these guns, the lower one in the photograph, was banned as an “assault weapon” due to the folding stock and pistol-grip design. Features like a folding stock or muzzle brake have little effect on the function of a firearm. Yet these cosmetic components were explicitly restricted as “common characteristics” of assault weapons in the language of the 1994 law. And despite the ban on the “assault” version, the fixed-stock Mini-14 was classified as a “firearm with legitimate utility” that could be sold by any licensed retailer. None of the features included or exempted in the AWB have any bearing on the lethality or mechanical function of the firearm itself.

Further clouding the issue are contradictory definitions for firearms in state and federal firearms codes. California’s laws (the supposed model for gun control) are so complex that even honest compliance can lead to significant legal problems. Scott Kirschenmann found that out when he contacted the California Department of Justice to register his lawfully assembled firearms. As a result of his good-faith attempt to follow the law, he was arrested and charged with 18 counts, including felony possession of an illegal firearm. Thankfully, his case was ultimately dismissed, though not before some of his firearms were destroyed by law enforcement.

Even gun control advocates can get in trouble. Scott-Dani Pappalardo made a video of himself destroying his AR-15. In the course of that destruction, he inadvertently created a highly illegal, short-barrel rifle. Fortunately for him, he was not brought up on charges.

2. Banning “assault weapons” won’t stop mass shootings.

Gun control groups insist “assault weapons” like the Mini-14 or AR-15 are the cause of mass shooting violence in America and must be regulated accordingly. A very broad definition of “mass shootings” compiled by the Gun Violence Archive tabulated 465 fatalities across 417 incidents in 2019. Those deaths represent about 2.8 percent of the 16,425 total homicides that year. Rifles were used in only 6 percent of all gun-related homicides in that same year. Many of these incidents were more commonplace types of criminal activity, such as shootouts over drugs or gang turf. Few of these incidents constitute a “shooting spree” of indiscriminate violence. Rare randomized killing sprees get disproportionate news coverage and politicians rush to the soapbox to proclaim that they are taking decisive action.

While we may not comprehend the motives for these tragedies, we can learn from them by deconstructing some of the more notorious ones. It might surprise some to learn that the presence of a semi-auto rifle is not a common denominator in the bloodiest mass shootings.

The 2007 Virginia Tech shooter was not armed with an assault weapon, just a 9mm Glock, a .22 caliber target pistol, and a duffel bag full of spare 10-round magazines at his hip during his 10-minute rampage. In 1991, a man crashed his truck into a Texas restaurant. Over 15 minutes, armed only with a pair of handguns, he fatally wounded 13 people and systematically executed 10 more. The 1946 “Walk of Death” in Camden, New Jersey, was perpetrated by a disturbed veteran armed with a 9mm pistol, two eight-round magazines, and some loose ammo in his pocket.

There is little evidence that weapon type, caliber, or capacity has any relation to the number of casualties in a spree killing. The spree shooter will always have the best advantages: planning and surprise. Typically, they deliberately select locations where firearms are unlikely to be present. Without resistance they can maneuver aggressively and without fear of reprisal.

The most significant factor in reducing fatalities in these sprees is how quickly an armed defender intervenes. These discoveries have prompted doctrinal changes in police departments. Official police procedure now is to engage the shooter immediately, with or without backup.

3. Assault weapons are a crucial self-defense tool.

Today’s gun owners are an increasingly diverse segment of the population. Associations like the National African-American Gun Association, the LGBTQ+ group Armed Equality, and the Well-Armed Woman have seen record growth in the last year. In a time when many people are questioning the role of law enforcement in their daily lives, it makes sense for greater numbers of people to take personal responsibility for the safety of themselves, their families, and their homes.

Experts prize the AR-15 as the ideal home-defense tool. High-capacity magazines are a particular benefit to senior citizens or physically disadvantaged people who might struggle with handling a handgun or shotgun. The lightweight bullets have low recoil; compared to shotgun and pistol rounds, they are less likely to over-penetrate walls and barriers. Everything the home defender will need can be prepared and stored safely under lock and key until needed for an emergency (which is hopefully never).

Banning such weapons would make felons out of people who have committed no harm and simply wish to protect themselves. Greater regulation will disarm marginalized groups facing very real threats of violence.

We must be wary of politicians who know little about firearms yet promise fast-acting, feel-good legislation instead of working towards more meaningful solutions.

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A North Carolina man is fighting to get back $39,500 in cash after police in Phoenix, Arizona, seized the money from him at an airport on suspicion that it was drug money, despite never charging him with a crime.

The Institute for Justice, a libertarian-leaning public interest law firm, filed an appeal Monday in the Arizona Court of Appeals on behalf of Jerry Johnson. Johnson owns a trucking company and says he flew to Phoenix last August to possibly purchase a semi-truck at auction.

“I flew to Phoenix thinking I could get a good deal on a truck that would allow me to expand my business,” Johnson said in an Institute for Justice press release. “But instead, the police took my money without ever charging me with a crime. It’s been a struggle to lose my savings, and now my business is barely getting by. I’m fighting for my money, but I’m also fighting because this should never happen to anyone else.”

The Institute for Justice is currently litigating a separate class-action lawsuit on behalf of people whose cash was seized by the Drug Enforcement Administration (DEA) at airports. One of the lead plaintiffs in that case, Stacy Jones, had  $43,167 in cash seized by the DEA as she was trying to fly home to Tampa, Florida, from Wilmington, North Carolina. Jones says the cash was from the sale of a used car, as well as money she and her husband intended to take to a casino.

Although it is legal to fly domestically with large amounts of undeclared cash, police have a habit of seizing currency from travelers under civil asset forfeiture laws. This practice allows law enforcement to seize property—cash, cars, guns, houses—suspected of being connected to criminal activity, even if the owner is never charged or convicted of a crime.

The DEA and local police regularly snoop on travel records and maintain a network of travel industry employees who act as confidential informants. A 2016 USA Today investigation found the DEA seized more than $209 million from at least 5,200 travelers in 15 major airports over the previous decade.

Law enforcement groups say civil forfeiture is an important tool for disrupting drug trafficking and other organized crime by targeting its ill-gotten gains. However, civil liberties groups say there are too few procedural protections for innocent owners and too many perverse profit incentives for police.

More than half of U.S. states have passed some form of asset forfeiture reform because of such concerns. The Arizona House passed a bill in February that would require law enforcement to obtain a criminal conviction before a defendant’s assets could be forfeited. If it passes the state senate, Arizona would join New Mexico, Nebraska, and North Carolina in essentially eliminating civil asset forfeiture.

The state already passed reforms in 2017 to raise the evidentiary threshold for forfeitures from “a preponderance of evidence” to “clear and convincing evidence,” but that did not help Johnson. 

After Johnson challenged the seizure and presented bank statements and tax returns to establish ownership of the money, the judge in his case ruled that because of inconsistencies in his story and circumstantial evidence offered by prosecutors—an old criminal record, buying a last-minute ticket with a quick turnaround, his nervous appearance in the airport, having three cell phones, and the alleged odor of marijuana on the cash—he hadn’t established a legitimate interest in the cash.

“In Arizona, prosecutors are required to prove through clear and convincing evidence that money is connected to criminal activity before the property can be forfeited,” Institute for Justice senior attorney Dan Alban said in a press release. “But instead of holding the state to its burden of proving guilt, the court required Jerry to prove his own innocence.”

The Institute for Justice believes the outcome of Johnson’s case could have broader implications for Arizona’s efforts to reform asset forfeiture. If the forfeiture is allowed to stand, Alban said, “it would create a dangerous loophole, undermining Arizona’s efforts to protect property owners.”

The Phoenix Police Department did not immediately return a request for comment.

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