Civil Asset Forfeiture

Federal Judge Rules That Albuquerque's Asset Forfeiture Created an Unconstitutional Profit Incentive

"There is a realistic possibility that forfeiture officials' judgement will be distorted by the prospect of institutional gain."


Arlene Harjo // Institute for Justice

A federal judge has ruled that Albuquerque's civil asset forfeiture program violated residents' due process rights by forcing them to prove their innocence to retrieve their cars. Under civil forfeiture laws, police can seize property suspected of being connected to criminal activity, even if the owner isn't charged with a crime.

The city of Albuquerque "has an unconstitutional institutional incentive to prosecute forfeiture cases, because, in practice, the forfeiture program sets its own budget and can spend, without meaningful oversight, all of the excess funds it raises from previous years," U.S. District Judge James O. Browning wrote in an order filed Saturday. "Thus, there is a 'realistic possibility' that forfeiture officials' judgment 'will be distorted by the prospect of institutional gain'—the more revenues they raise, the more revenues they can spend."

The Institute for Justice, a libertarian public interest law firm, filed the lawsuit in 2016 on behalf of Arlene Harjo, whose car was seized after her son drove it while drunk.

"It's a scam and a rip-off," Harjo told Reason at the time. "They're taking property from people who just loan a vehicle to someone. It's happened a lot. Everybody I've talked to has had it happen to them or somebody they know, and everybody just pays."

Harjo was one of thousands of Albuquerque residents whose cars were seized under the city's aggressive forfeiture program. While lawsuits have forced cities like Philadelphia to reform their programs, federal judges have for the most part been unwilling to directly address the issue of profit incentive.

In a statement, Institute for Justice attorney Robert Everett Johnson said the Institute "will undoubtedly use this decision to attack civil forfeiture programs nationwide."

"Today's ruling is a total victory for fairness, due process and property owners everywhere," Johnson continued. "The court ruled the government must prove that an owner did something wrong before it can take away their property. Beyond that, the judge ruled that law enforcement cannot benefit financially from revenue generated by a forfeiture program. Together, these rulings strike at the heart of the problem with civil forfeiture."

Law enforcement groups say civil forfeiture is a vital tool to disrupt drug trafficking and other organized crime. But civil libertarians note that there are far too few safeguards for property owners and that the profit incentive leads police and prosecutors to go just as often after everyday citizens rather than cartel bosses.

New Mexico essentially banned civil asset forfeiture in 2015, but Albuquerque argued the state law didn't apply to its own city codes and continued to seize cars.

City officials offered to give Harjo her car back for $4,000—a typical settlement tactic—but she refused to pay up. The city then returned the car in an attempt to render her lawsuit moot and keep its program intact. But in a opinion issued in March, Judge Browning allowed the case to proceed, warning the city that Harjo had raised plausible claims that the city's profit incentive and hearing process violated her constitutional rights.

Shortly after the March opinion was released, Albuquerque officials announced they were ending the city's forfeiture program. But Saturday's decision is still important: Two other New Mexico local governments continue to flout the reform law and seize vehicles, and almost no state or local police departments have complied with new reporting requirements for forfeiture activities.

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  1. Does this judge understand the chilling effect this could have on official ignorance of property rights?

  2. “Law enforcement groups say civil forfeiture is a vital tool to disrupt drug trafficking…”

    So is a bullet in the head of any person possessing drugs (an idea Jeff Sessions probably fully endorses), but that does not make it right, or better yet, Constitutional. Police going inside any home they wish without a warrant is also a vital tool to disrupt drug trafficking.

    1. And yet drug trafficking has gone on unabated… it’s a conundrum!

  3. It took a Judge to figure that out?

  4. “New Mexico essentially banned civil asset forfeiture in 2015, but Albuquerque argued the state law didn’t apply to its own city codes and continued to seize cars.”

    Can someone explain this to me? How does this reasoning work? (Serious question, this strikes me as super odd.)

    1. It goes like this:
      We like to spend money of stuff we can play with.
      We don’t have that kind of money ourselves.
      We do have friends with guns.
      We can use the drug war as an excuse.

      1. your logic is flawless

    2. The reasoning works like the old childhood sing-song “nah, nah, na-na-nah, you can’t make me”. In other words, unless the governor of NM was willing to send in the National Guard to shut down the police department, there was nobody with enough guns or strength to make them stop. Seriously.

      1. I mean, yes and no. I think sending some State Troopers to arrest the people in charge of administration of the forfeiture program would have gotten their attention very quickly.

    3. that sounds like embezzlement to me. Even money laundering charges in this case might be appropriate.

    4. A state can end a STATE forfiture program adminstered by state employees by directive from either a governor or head of public safety.

      The key word is “essentially” The legislature was not involved; it was probably executive action. Even if the legislature was involved the wording of the bill may have been specific to State employees and agencies.

      A state employee directive has no effect on the policy of cities and their law enforcement.

    5. No one had threatened the Albuquerque city government with being fed into a running woodchipper feet-first, at that time.

    6. States can preempt municipal laws but they don’t have to and the wording that the New Mexico legislature used in 2015 doesn’t explicitly say that they did. On the contrary, the wording they used seems quite specific to “the state”.

      Albuquerque was arguing that the new NM law stopped forfeitures conducted by state-level authorities but did not have any bearing one way or the other on their own municipal laws.

      So depending on who you want to blame, either the NM legislators were sloppy or the Albuquerque officials were exploiting a loophole or both.

    7. I live here. It’s madness. I’ve been here 17 years, a generation, and no measurable change has taken place, poverty, education, alcoholism. This is a city that voted to spend $70 million for an Albuquerque Rapid Transit system, 19 busstops, to replace the already speedy Rapid Ride. We didn’t have the money but Federal Transit Authority was going to write an IOU.

      The project is now a year overdue, has destroyed local businesses, and will now cost $220 million. While the City’s population is growing, they turned the two lane, popular Route 66 aka Central Avenue into one lane…with the buslane in the middle! I’m a wheelchair user and this feels totally unsafe.

      Oh yeah they built the platform to be equal with the buses so no more ramps. Then they found out that someone mismeasured so they had to lower the platforms. The climate is so harsh, hot summers, cold winters, the material they used for the bus stop will disintegrate in five years. My guestimate is in another decade they’ll reverse the project.

    8. Fuck you, that’s why.

  5. Why didn’t the judge rule that all civil asset forfeiture is a violation of the fourth amendment?
    After a trial and conviction, the money is called a fine.
    Before a trial and conviction, and for damn sure before any charges are filed, it is called armed robbery. A cop hooking a car up to a tow truck is NOT due process.

    1. Because the history of civil asset forfeiture goes back to before the Founding and was accepted practice even then.

      Mind you, CAF was an entirely different thing back then. It started as an anti-smuggling effort. If you were smuggling, say, rum into a town and were about to get caught, it was not uncommon to throw the incriminating cargo overboard or even to abandon the entire boat. The police were then left with a stock of contraband and no known owner (and no prospective owner stupid enough to step forward to claim it). In order to confiscate it, courts began allowing the legal fiction of a case against the property itself such as Commonweath of Mass. vs 14 Barrels of Rum. This ensured at least some minimum of due process and allowed a legitimate owner an opportunity to intervene and to argue that his cargo was not in fact contraband.

      Where you’re talking about abandoned property that is self-evidently illegal, CAF makes some smidgen of sense. No one argues with the police seizing a brick of heroin left abandoned in the street. CAF makes no sense at all when the owner is known.

      Conclusion: CAF as currently practiced is clearly unconstitutional but it would be an overreach to say that all CAF is always unconstitutional.

  6. “Thus, there is a ‘realistic possibility’ that forfeiture officials’ judgment ‘will be distorted by the prospect of institutional gain’?the more revenues they raise, the more revenues they can spend.”

    Um – Can this judge explain why this logic doesn’t apply to the whole government?

    1. Love it! Of course this is a police entity versus a taxing authority. Still, I like where your thought process is.

  7. the profit motive is an interesting point, but CAF would be unconstitutional even without the profit motive.

  8. “There is a realistic possibility that forfeiture officials’ judgement will be distorted by the prospect of institutional gain.”

    Really? Wow, you could have knocked me over with a feather.

  9. Yay Ms Harjo!, Yay Institute for Justice!, Yay Judge Browning! The government is supposed to protect people and their property. It’s bad enough they steal from one person to give to another. When they start stealing to fund themselves, they are acting in direct contradiction to the US Constitution. It’s as though they’ve forgotten the Revolutionary War and proclaimed themselves little kings throughout the land.

  10. So, will they force Albuquerque and other cities to return all the money and property they stole and prosecute the thieves that stole it?

    1. Just as soon as the unicorns arrive for the mounted posse – – – – – – –

  11. And the Institute for Justice gets another contribution from Jerry B.

    1. Amen, brother– likewise. When it comes to worthy causes, IJ tops my list.

  12. “Law enforcement groups say civil forfeiture is a vital tool to disrupt drug trafficking and other organized crime.”

    Which is great in THEORY. The problem is that police and local governments have not gone after drug traffickers or organized crime, but honest citizenry who have no means to fight for their property.

    Our local Highway Patrol and police department love to set up at a major interstate interchange. Every day, I see them stopping people and tearing their cars apart. The other day I saw some statistics on how often their searches bear fruit. . Less than 1 in 25 stops. So, lets screw 24 peoples day up, just so we can search their cars and MAYBE catch a criminal . . .

    Asset forfeiture is nothing but a major abuse by local and federal governments.

  13. NM, well Santa Fe, at least will arrest someone for “impaired driving” even when a breathalyzer shows 1/2 the impaired limit. Put you in jail and take some money from you. Meanwhile one can have 7-8-9 real DUIs and still be on the road. It’s southern big sister city, Duke city needs money as their illinformed red light camera proved several years ago. The entrepreneurial spirit would better serve the community if officials went out on their own and actually provided a service worth something.

  14. I think in the interest of restorative justice we should have 20 years where any private citizen can accuse a government worker of something and then take all their stuff.

  15. “We are fast approaching the stage of the ultimate inversion: the stage where the government is free to do anything it pleases, while the citizens may act only by permission; which is the stage of the darkest periods of human history, the stage of rule by brute force.”- Ayn Rand

    Well, then- here we are…

  16. Sessions is an asshole who will make asset forfeiture a permanent law…Notice a lot of the confiscated vehicles come from people of color. This abomination of a law is nothing but a tool for the corrupt law enforcement agencies. Local sheriffs get to buy fancy cars that they use for personal reasons like showing off. They don’t have buy insurance, tags nor pay taxes on these vehicles. They are the only recipients of the forfeitures. If the deputies started confiscating the rich white kid’s cars you would see a change in the law.. I think the drug business is profitable for the corrupt cops and the drug dealers…Everyone wins except the innocent.

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