Remember that amazing property rights and due process victory earlier this year when New Mexico passed one of the strongest laws restricting asset forfeiture in the United States? Not only did it require that citizens be convicted of crimes before having their property and money permanently taken by law enforcement, it also directed the revenue from forfeiture into the state's general fund rather than to police departments. Police could no longer take property from citizens without proving they had committed crimes, and the profit motive for doing so had been erased. It was wonderful! It's probably the best reform of asset forfeiture rules ever passed.
Anyway, some police are apparently ignoring the law. I believe the appropriate sound effect is the sad trombone's "womp womp."
What is happening is that some cities seem to think that the new asset forfeiture rules don't apply to their own ordinances. Albuquerque has a vehicle seizure program that snatches cars from people accused of crimes, particularly cases of drunken driving. They have not stopped this program. In fact they seem to be pushing it more than ever to bring in revenue for city police.
Now the city of Albuquerque is being sued by two state senators representing Albuquerque (one a Democrat, one a Republican) to try to stop it. They're being represented by the property-rights-fighting lawyers for the Institute for Justice, which had helped push for the reform in the first place. Here's how the Santa Fe New Mexican describes the city's vehicle seizure program:
Robert Johnson, an attorney with the [Institute for Justice], said Albuquerque was named in the lawsuit is because it has the oldest and largest civil forfeiture program in the state.
And it's the most profitable, too. According to the Institute for Justice, the Albuqueruque program seizes more than 1,000 cars a year and brings in more than $1 million annually to city coffers. The program is so successful that the city approved $2.5 million in new bonds to purchase a larger parking lot to store the seized vehicles. The revenue from the program is used to pay the salaries of those who are its most vocal defenders, as well as for new equipment and travel.
According to the complaint, the city's 2016 budget anticipates seizing 1,200 vehicles, releasing 350 of them, immobilizing 600 and selling 625 at auction.
Programs such as the one in Albuquerque, Johnson said, "create a financial incentive to take property from people who have done no wrong." Even if the owner of the car was not the driver, the car can be seized, Johnson said. And, he added, "That profit incentive turns law enforcers into lawbreakers."
City attorneys for both Albuquerque and Santa Fe are arguing that the law, as passed, does not apply to specific ordinances passed by cities. An editorial by the Albuquerque Journal says there has been one judge's ruling that this is indeed the case and that the new forfeiture rules do not apply to seizure programs put into place by municipalities.
If that's the case, that's a pretty big loophole that legislators need to close, or else we could see a proliferation of New Mexico cities passing their own laws to restore civil (non-criminal) asset forfeiture systems. It's hard enough for state legislators to go against the wishes of law enforcement and prosecutors. It's almost impossible for elected city officials to defy them.