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An Arizona appellate court issued a fascinating decision earlier this month that helps break down the often-thin distinction between criminal penalties and civil sanctions. In Foor v. Smith, the court dealt with Jennifer Foor’s appeal of a superior court’s order denying special action relief. She sought this relief to curtail an order the Phoenix Municipal Court issued which forfeited her 41 cats to the City of Phoenix. Although the appellate court ultimately affirmed the denial of relief, it also made a potentially ground-breaking decision: it held that the Brady/Giglio doctrine required the city to disclose exculpatory information to her in the civil proceedings.

Back in 2012, the Arizona Humane Society visited Ms. Foor at her son’s home where she resided because law enforcement requested that it check upon the condition of her many cats. The Humane Society’s representative spoke to Ms. Foor about how to better care for the animals, and planned to follow up. After several cancelled appointments, the representative returned to the property and called her supervisor because she was concerned that the living conditions were dangerous. The supervisor contacted local police; the police responded and seized the cats.

The appellate court explained that at the post-seizure hearing in 2013, “[t]he municipal court held a two-day evidentiary hearing … at which [the AHS representative], Officer Cohane, Dr. Bradley, Foor, and Foor’s son testified. After lengthy testimony, the court concluded the cats were cruelly neglected based upon the lack of shelter and sanitary conditions, and should be forfeited to the City.” Ms. Foor eventually filed the special action, which she subsequently amended with a Brady allegation after she learned in 2016 that Officer Cohane appeared on the Maricopa County Attorney’s Office’s “Brady list” in 2004. The superior court denied relief and held that Brady does not apply in civil proceedings.

On this last point, the appellate court parted ways with the lower court. Even though Foor “point[ed] to no authority for the extension of these [Brady/Giglio] disclosure requirements,” the court found that due process demands them. Perhaps the most critical fact was that “the Phoenix Municipal Court allows no pretrial discovery in civil cases, including forfeiture cases,” in contrast to “civil forfeiture cases in the superior court [which] are subject to the disclosure and discovery requirements provided by the Arizona Rules of Civil Procedure.” This unique setting enabled the court to narrow the question to “whether Brady and Giglio should apply to the rare case where a defendant is deprived of the usual disclosure and discovery rights available in similar cases.”

Finding that the “forfeiture of [] property” was a “unique deprivation of rights only the government may seek,”—and recognizing the total lack of discovery available to Foor—the court found that “the City’s civil action is virtually indistinguishable from a criminal action.” On this ground, it held that “Brady and Giglio apply in civil forfeiture actions absent a mechanism for the defendant to discover, at a minimum, non-privileged exculpatory and impeachment information in the government’s possession.”

The decision is important because it enforces an individual due process right in the civil context where it had almost exclusively been enforced in the criminal context. While the holding clearly only applies directly to those uncommon instances in which municipal courts provide no meaningful discovery to people whose property has been seized, it will empower other individuals in the civil context to make similar arguments about Brady’s applicability. These arguments warrant close attention because nefarious policies like civil asset forfeiture and liberty-restricting policies like civil commitment threaten people’s livelihoods as much as potential criminal punishments, but they circumvent the key constitutional protections that apply in criminal cases. If the government must turn over exculpatory information in these proceedings, individuals may receive information that can demonstrate that certain government actors abuse their power and engage in wrongdoing, undercutting the seizure’s legitimacy.

All that said, it would be a mistake to fetishize the extension of Brady. As regular readers know, Brady itself is a fraught and compromised doctrine that has not effectively leveled the playing field between defendants and prosecutors. Holding Brady out as some kind of Holy Grail in the civil context may miss an easier solution (even hinted at by the Arizona appellate court): civil discovery practices typically provide far better protection than criminal discovery. Indeed, the troublesome materiality requirement took out the legs of Ms. Foor’s claim; the court denied relief because the information she uncovered about the police officer’s lack of trustworthiness was not “material” enough to require reversal of the seizure of her pets. Perhaps the real lesson is that transferring the Brady doctrine into the civil context can supplement—not fulfill—efforts to protect individual rights. In those many areas of law in which the State uses civil proceedings to effectuate what is “virtually indistinguishable” from criminal punishment, due process should kick in.

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