Due Process

Federal Judge Breaks Up Albuquerque's Car Theft Ring

A new ruling says the city's civil forfeiture program violates the right to due process.


On a Saturday afternoon in April 2016, Arlene Harjo let her 38-year-old son borrow her two-year-old Nissan Versa for what he said was a trip to the gym with his friends. He was gone all day, and the next morning Harjo learned that Albuquerque police had arrested him for driving while intoxicated. The cops had also taken custody of Harjo's car, which the city planned to keep.

Harjo's response to Albuquerque's theft of her car culminated this week in a ruling that highlights two especially troubling aspects of civil forfeiture. The practice, which allows confiscation of assets allegedly tied to crime even when the owner has not been accused of breaking the law, gives the government a financial incentive to take people's property and requires them to prove their innocence if they want to get it back.

U.S. District Judge James Browning, in a decision issued on Monday, said those features make Albuquerque's forfeiture ordinance inconsistent with the constitutional guarantee of due process. "The City of Albuquerque has an unconstitutional institutional incentive to prosecute forfeiture cases," he writes, "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." Furthermore, the program "violates procedural due process, because owners have to prove that their cars are not subject to civil forfeiture."

Harjo's experience shows how rigged this system is. Albuquerque seizes more than 1,000 cars a year, generating more than $1 million in revenue, based on crimes such as DWI, patronizing prostitutes, and felonies involving guns. Half the time, as in Harjo's case, the car does not belong to the offender.

Cars nevertheless are automatically forfeited if the owner does not request an administrative hearing (and pay a $50 fee) within 10 days. Before Harjo's hearing, as part of its customary "settlement negotiations," the city offered to sell her car back to her for $4,000, provided she agreed to have the vehicle booted for 18 months.

After Harjo turned down that magnanimous offer, a hearing officer rejected her "innocent owner" defense, which required her to prove "by a preponderance of the evidence" that she "could not have reasonably anticipated" the illegal use of her vehicle. The city proceeded with its forfeiture claim in state court, and Harjo continued to fight it without a lawyer's help, which she could not afford and the city had no obligation to provide.

Several months later, after Harjo filed a lawsuit with help from the Institute for Justice, the city dropped its forfeiture complaint. It turned out that Harjo's car was not subject to forfeiture because it had been seized outside the boundaries of Albuquerque.

Meanwhile, the car had been damaged while sitting in a city lot for eight months, during which Harjo had to make payments on a vehicle she could no longer use. But since the car had been seized outside Albuquerque, she did not have to pay the $10-a-day "storage" fees that the city customarily uses to pressure owners into settling.

This racket continued even after the New Mexico legislature in 2015 passed a law aimed at eliminating civil forfeiture by requiring a criminal conviction before property can be confiscated. Albuquerque claimed that law did not apply to its forfeiture program—an argument that Judge Browning rejected last March.

After that ruling, the city said it would stop confiscating cars without a criminal conviction. This week it said the city's lawyers are "working to update the program."

Robert Everett Johnson, one of the Institute for Justice attorneys who represented Harjo, said Browning's findings regarding financial incentives and the presumption of innocence "strike at the heart of the problem with civil forfeiture." The ruling therefore should be useful in other cases challenging the practice.

"I'm glad this is going to help people in the same situation," Harjo said. "Hopefully now more people will fight back, and courts will say this has to stop."

© Copyright 2018 by Creators Syndicate

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  1. What, exactly, are the penalties for jurisdictions that ignore the court?

    1. The toughest of penalties… Qualified immunity and increased government jobs to harass new citizens to make up for the loss of revenue.

    2. What penalties, you ask?

      Well, Albuquerque’s response was that lawyers are “working to update the program.” So, I would say the penalty is more work for lawyers paid for by taxpayers. Any additional “pay” will be that which is forcibly extracted from and suffered by those citizens unfortunate enough to fall prey.

      Oh, shit. My bad. You were speaking to an actual penalty for the agents/insititutions of oppression. Despite your handle, I fell for it.

  2. IJ puts another thumb in the eye of the beast.

    Doing the work that the ACLU couldn’t be bothered with.

    1. To be fair, it’s pretty unreasonable to think that a bunch of commies would defend private property.

    2. American

  3. “The City’s legal team will analyze the impact the ruling will have,” [Mayor’s Office spokeswoman Alicia Manzano] said. “Meanwhile, APD is focusing efforts on effectively combating drunk driving by doubling the number of traffic stops and increasing DWI checkpoints and saturation patrols.”

    One can only imagine which citizens’ property they’ll have to pillage to pay for that overtime.

  4. she did not have to pay the $10-a-day “storage” fees that the city customarily uses

    Everyone knows the impound lot with the Dobermans and Rottweilers is the best parking lot in town – $10 is a bargain.

  5. Mayor Tim Keller’s administration previously said it would give vehicle owners who weren’t driving when their cars were seized more protections than the previous city administration. But no changes have been made in the law.

    “This ruling confirms our concerns with the past approach and the need to protect the constitutional rights of people in our community,” Alicia Manzano, a spokeswoman for the Mayor’s Office, said in a statement. “At the Mayor’s direction, the City’s Legal department has been working to update the program, including limiting it to cases where there has been a conviction based on the new state law.

    More like at the federal judge’s direction, but nice try by the mayor to reframe his culpability.

  6. So “New” Mexico law enforcement culture is not so different from “old” Mexico.

    1. My understanding from talking with people who have lived there is that in “old” Mexico the cops take bribes. You can offer to pay the fine on the spot. If you can afford it then the cop keeps the cash and lets you go. Though my information may be out of date.

      1. That’s still accurate. But prices triple for gringos.

      2. But the street cop still pays a franchise fee to his boss and department.

      3. I call that ‘random taxation’ – you have to be ready for it at all times in third world kind of places, and bribes may actually more complicated [as in paying in advance for protection of smuggled commodities in transit, or ongoing criminal enterprise]. It’s annoying, but… it’s actually cheaper on net than the institutionalized corruption here [except for taxi drivers carrying tourists in some places – they get selected with regularity for “traffic violations” it seems to me]. I jokingly wonder what people in NYC would say to this: would you accept having to give police twenty bucks at every random interface if the city dropped its income tax? Estimated “contribution” odds somewhere at 1 in 5 chance every year [on average] to the citizen. Cash is king in the third world – half of Vietnam still doesn’t know what a credit card is and might call you every name under the sun if you offered a check for payment of anything – that’s not money to them [but the fiat currency washing about them is].

  7. About time we had a win against the cancer of organized crime hiding behind a badge. What’s incredible is that the thugs in Alburquerque were brazen enough to be stealing outside their alleged jurisdiction. Now if only we can get this due process argument cemented for behaviors inside their jurisdiction. The business of snatching cars/boats/planes/houses is just a obnoxious as quartering under king George, but does more in financial damages than feeding 12 soldiers for a week.
    Property used to be respected in this country, and anyone seeking to take it had to go to court and prove damages before it could be transferred as part of settlement – some of the signers of the declaration of independance garnered a nice sum of wealth settling court cases for land.

    1. I’m not nearly as worried about the cop with the badge in this case. It’s unaccountable bureaucrats hiding behind a desk that worries me. He may not carry a gun but he makes the rules, sets the priorities and reaps the rewards. The cop doesn’t get a new car, gun or uniform if he “steals” a car. But his boss gets a nice slush fund to apply as he sees fit and usually with very little oversight.

  8. Well that’s pretty crappy. How is the police department supposed to afford to pay officers on administrative leave if they can’t steal stuff now and then?

  9. A DWI conviction, by definition, means you were driving. Yet the legislature didn’t include seizure of the auto you were driving as part of the penalty. If they did it could easily be challenged as an excessive fine. It could probably be challenged on the disparity of the punishment too, since cars are commonly between $2k and $100K.

    But somehow the APD can tack on a civil penalty that sidesteps the fact that it’s not even the prescribed punishment, and if it were would likely be unconstitutional on grounds other than due process.

  10. Asset forfeiture amounts increased sharply under the George Waffen Bush “faith-based” kleptocracy. The prez was, of course, surprised that government agents robbing banks and homes could contract credit and cause a liquidity crisis. But robbery-by-law dropped off fairly quickly once the entire economy again collapsed, as it had in 1929-33 and 1987-92. Parasitism is not healthy.

  11. New Mexico went right back to shit immediately after Gary Johnson.

  12. When local governments are allowed to do evil…They do it with zest and zeal….Police and locAL GOVERNMENTS are awash in illegal criminal activities in the name of fighting this so called war on drugs. The bottom line is the bottom line. They are not interested in fighting crime when they themselves are part of the criminal enterprise.

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