Platt v. Moore

15 F.4th 895

William Terence PLATT; Maria B. Platt, Plaintiffs-Appellants,

v.Jason S. MOORE, in his official capacity as Deputy Navajo County Attorney; Brad Carlyon, in his official capacity as Navajo County Attorney; Navajo County Drug Task Force, AKA Major Crimes Apprehension Team; County of Navajo; K. C. Clark, in his official capacity as Navajo County Sheriff; City of Winslow, a municipal corporation; Chris Vasquez, in his official capacity as Chief of Police for the City of Winslow; City of Holbrook, a municipal corporation; Mark Jackson, in his official capacity as the Chief of Police for the City of Holbrook; Town of Snowflake, a municipal corporation; Town of Taylor, a municipal corporation; Larry Scarber, in his official capacity as Chief of Police of Snowflake-Taylor Police Department; City of Show Low, a municipal corporation ; Joe Shelley, in his official capacity as Chief of Police for the City of Show Low; Town of Pinetop-Lakeside, a municipal corporation ; David Sargent, in his official capacity as the Chief of Police for the Town of Pinetop-Lakeside, Defendants-Appellees,andState of Arizona, Intervenor-Defendant-Appellee.

William Terence Platt; Maria B. Platt, Plaintiffs-Appellees,

v.Jason S. Moore, in his official capacity as Deputy Navajo County Attorney; Brad Carlyon, in his official capacity as Navajo County Attorney; Navajo County Drug Task Force, AKA Major Crimes Apprehension Team; County of Navajo; K. C. Clark, in his official capacity as Navajo County Sheriff; City of Winslow, a municipal corporation; Chris Vasquez, in his official capacity as Chief of Police for the City of Winslow; City of Holbrook, a municipal corporation; Mark Jackson, in his official capacity as the Chief of Police for the City of Holbrook; Town of Snowflake, a municipal corporation; Town of Taylor, a municipal corporation; Larry Scarber, in his official capacity as Chief of Police of Snowflake-Taylor Police Department; City of Show Low, a municipal corporation ; Joe Shelley, in his official capacity as Chief of Police for the City of Show Low; Town of Pinetop-Lakeside, a municipal corporation ; David Sargent, in his official capacity as the Chief of Police for the Town of Pinetop-Lakeside, Defendants,andState of Arizona, Intervenor-Defendant-Appellant.

No. 19-15610

No. 19-15732

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 2020 Portland, Oregon

Filed October 4, 2021

Paul V. Avelar (argued) and Keith E. Diggs, Institute for Justice, Tempe, Arizona, for Plaintiffs-Appellants.

James M. Jellison (argued), Jellison Law Offices PLLC, Carefree, Arizona, for Defendants-Appellees.

Drew C. Ensign (argued), Chief Counsel, Civil Appeals; Thomas Rankin, Chief Counsel, Financial Remedies Section; Brunn (Beau) W. Roysden III, Kenneth Hughes, and Robert J. Makar, Assistant Attorneys General; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Intervenor-Defendant-Appellee.

Before: A. Wallace Tashima, Marsha S. Berzon, and Daniel P. Collins, Circuit Judges.

Partial Concurrence and Partial Dissent by Judge Collins

BERZON, Circuit Judge:

Police stopped the Platts’ car while their son was driving it, found marijuana in the car, and arrested the son. The Platts’ car was seized pursuant to Arizona's labyrinthine civil forfeiture statutes. The vehicle was eventually returned to its owners, but only after it had been impounded for five months. Alleging that the seizure of their car and the deprivation of its use for five months violated their rights to due process under the federal and state constitutions, the Platts sued various state and local officials and entities. The district court dismissed all claims.

The Platts now appeal the dismissal of their state claims only. We reverse in part, affirm in part, and remand to the district court for further proceedings. We also reject Arizona's invitation on cross-appeal to issue an advisory ruling that its civil forfeiture scheme is facially constitutional.

I.

The Platts loaned the vehicle at issue here to their son, Shea, in April 2016. The next month, Shea was arrested during a traffic stop after a police dog alerted to the presence of marijuana in the vehicle. Jason Moore, a Deputy Navajo County Attorney and the "asset forfeiture attorney" for Navajo County, directed that the car be seized and impounded. Moore later filed in Navajo County Superior Court, and mailed to the Platts, a "Notice of Pending Forfeiture," in compliance with Arizona Revised Statutes ("A.R.S.") § 13-4307.

After receiving such a notice, persons with an interest in property subject to forfeiture proceedings face a choice between two avenues for protecting their property rights. They may "file either a claim with the court ... or a petition for remission or mitigation of forfeiture with the attorney for the state" within thirty days of the notice, "but may not file both." Id. § 13-4309(2). If a property owner does not pursue either option, then the state's attorney may proceed in court with "uncontested forfeiture." Id. § 13-4309. In uncontested forfeiture proceedings, the state need only establish probable cause to believe that the property is subject to forfeiture; it need not prove the factual basis for forfeiture by clear and convincing evidence, as required for contested forfeiture proceedings. See Id. § 13-4314(A); Id. § 13-4311(D), (M). As Arizona courts have recognized, forfeiture of the property in uncontested forfeiture proceedings is "virtually assur[ed]." Wohlstrom v. Buchanan , 180 Ariz. 389, 884 P.2d 687, 689 (1994).

The Platts chose to contest the forfeiture of their car by filing a petition for remission or mitigation. Such petitions require the attorney for the state to conduct an investigation and to issue a written declaration of forfeiture, remission, or mitigation. If the state's attorney chooses to proceed with the forfeiture and issues the required written declaration, the petitioner then has thirty days within which to file a claim with the court to protect her property rights. See A.R.S. § 13-4309(3)(a) to (b).

Here, the Platts allege, no written declaration of forfeiture issued. Instead, Moore unilaterally determined that the petition was defective. Without notifying the Platts of any defect or affording an opportunity to correct it, he proceeded as though the forfeiture were uncontested, representing to the Superior Court in his application for forfeiture that "no timely claim or Petition for Remission has been filed."¹

When they learned that Moore had applied for uncontested forfeiture, the Platts filed a claim "against the property" in Arizona state court, Id. § 13-4311. Although Arizona law bars property owners from intervening in forfeiture proceedings once an application for forfeiture is filed, see Norriega v. Machado , 179 Ariz. 348, 878 P.2d 1386, 1390 (Ariz. Ct. App. 1994), the Platts proposed to construe Moore's purported application for forfeiture as the written declaration of forfeiture that should have been issued in response to their petition, which would have afforded them thirty days within which to file a claim against the property. See A.R.S. § 13-4309(3)(c). Moore promptly moved to strike that claim, asserting for the first time that the Platts’ petition for remission or mitigation was defective because, although it had been signed, it did not state that it had been "signed under penalty of perjury."

The Platts responded with an opposition to Moore's motion. They also filed in state court this civil rights action against Moore and various co-defendants, challenging Arizona's forfeiture system as violating the constitutions of the United States and of Arizona. In particular, the Platts alleged that Arizona's uncontested forfeiture regime denies them due process of law because it: (1) allows attorneys for the state to adjudicate, without meaningful review, forfeiture proceedings in which the state's attorney, in his official capacity, has a pecuniary interest (the "biased adjudicator" claims); and (2) awards all interests in property forfeited to the agency responsible for seizing it, "impair[ing] the ability of law enforcement to administer justice impartially" (the "biased enforcer" claims).

Two weeks after this civil rights action was filed, Moore withdrew both his motion to strike and his application for forfeiture, although he maintained that the Platts could not have contested the forfeiture of the car in the pending state forfeiture proceeding had he moved forward. The car was returned to the Platts five months after it was impounded.

Moore and his co-defendants then removed the Platts’ civil rights action to federal court, asserting federal question jurisdiction. 28 U.S.C. § 1331. Once the case was removed, the state of Arizona intervened to defend the constitutionality of its forfeiture statutes.

The Platts’ case did not fare well in district court. The court dismissed all claims for declaratory and injunctive relief as moot for federal court purposes, a ruling the Platts do not contest. It dismissed all state law claims for failure to comply with Arizona's "notice of claim" statute. See A.R.S. § 12-821.01. These rulings were supplemented by merits grounds for dismissing the "biased adjudicator" claims altogether and for dismissing the "biased enforcer" claims against particular defendants. As to the "biased adjudicator" claims, the court adopted an interpretation of Arizona's forfeiture statutes on which Moore's motion to strike would have failed and the Platts could have obtained meaningful review of Moore's decision to reject their petition. As to the "biased enforcer" claims, the court dismissed as a defendant the Navajo County Drug Task Force on the ground that it was not a "jural entity" with the capacity to be sued under Arizona law, nor a "person" under 42 U.S.C. § 1983, and also dismissed the claims against the individual members of the Task Force.

At that point, the "biased enforcer" federal due process...