New Mexico Legislators Sue City For Refusing to Follow New Asset Forfeiture Law

by Tim Cushing
Dec. 09, 2015

Earlier this year, the state of New Mexico passed one of the most solid pieces of asset forfeiture reform legislation in the country. All it asked for was what most people would consider to be common sense: if the government is going to seize assets, the least it could do in return is tie the seizure to a conviction.

Now, the state is finding out that bad habits are hard to break. CJ Ciaramella reports that the government is going after another part of the government for its refusal to stop taking stuff without securing a conviction.
Two New Mexico state senators are suing Albuquerque after the city has refused to stop seizing residents’ cars, despite a law passed earlier this year ending the practice of civil asset forfeiture.

In a lawsuit filed Wednesday, New Mexico state senators Lisa Torraco and Daniel Ivey-Soto said Albuquerque is defying the new law and “has continued to take property using civil forfeiture without requiring that anyone—much less the property owner—be convicted of a crime.”
These would be the two senators who pushed for the much-needed reform. They managed to get the law passed, but Albuquerque (along with other cities in the state) haven't shown much interest in altering their tactics. The only incentive the new law has on its side is the threat of legal action or legislative pressure. The old incentives -- hundreds of thousands of dollars -- are still motivating local law enforcement.
Albuquerque has a particularly aggressive program to seize vehicles from drivers suspected of DWI. According to the Albuquerque Journal, the city has seized 8,369 vehicles and collected more than $8.3 million in forfeiture revenues since 2010.
The city's attorney argues this newly-illegal activity is still legal, because drunk driving.
“Our ordinance is a narrowly-tailored nuisance abatement law to protect the public from dangerous, repeat DWI offenders and the vehicles they use committing DWI offenses, placing innocent citizens’ lives and property at risk,” city attorney Jessica Hernandez said in a statement to BuzzFeed News. “The ordinance provides defenses to forfeiture to protect innocent owners and has been upheld by the courts.”
Yes, all asset forfeiture statutes and ordinances theoretically provide "defenses to forfeiture" and have been "upheld by courts." That doesn't make them right, especially when a law directly governing the city's actions has been passed and forbids the very thing it continues to do.

And as for the DWI excuse, the city itself admits that half the vehicles it seizes do not belong to the person driving them. So, all it's really doing is taking cars because it can, not because it has any interest in preventing drunk drivers from driving. Then it lays the burden of proof -- along with the time and expense of fighting these seizures -- on the people whose vehicles have been taken (often for the actions of someone else) and calls it a reasonable avenue of "defense to forfeiture."

Once vehicles are seized, it generally takes $850 to liberate them. Most are auctioned. This money then becomes part of a cash-heavy feedback loop by going directly to the prosecutors and police departments who run the seizure program.

Stacking the deck further is the fact that the city counts its seizures before they're seized as part of its budgetary plans.
According to Wednesday’s lawsuit, Albuquerque forecasts how many vehicles it will not only seize but sell at auction. The city’s 2016 budget estimates it will have 1,200 vehicle seizure hearings, release 350 vehicles under agreements with the property owners, immobilize 600 vehicles, and to sell 625 vehicles at auction.
When government agencies have predetermined the amount of vehicles they will need to seize to hit budget projections, they will do everything in their power -- including, apparently, ignoring new laws forbidding this sort of thing -- to ensure the number of vehicles they seize is the number of vehicles they planned to seize. The incentives could not be more perverted and yet, government officials claim the system will somehow result in only the vehicles of the truly guilty being taken and sold to pay for more vehicles being taken and sold.

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