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Three Years After New Mexico Banned Civil Forfeiture, Albuquerque Finally Ends It

Albuquerque tried to ignore strict new state reforms and keep seizing cars, but then it messed with the wrong person.

Arlene Harjo // Institute for JusticeArlene Harjo // Institute for JusticeAlbuquerque resident Arlene Harjo's case started out like thousands of others: a seized car, claims of unfairness, and indifference from city officials. But two years later, a federal civil rights lawsuit over the taking of her 2014 Nissan Versa has resulted in the dismantling of Albuquerque's once-lucrative civil asset forfeiture program.

Albuquerque announced this week that it will end the program following a federal judge's recent decision to allow Harjo's lawsuit against the city to proceed. "Given changes in state law and recent court rulings, it's time to update the city's policy on vehicle seizures," Albuquerque Mayor Tim Keller said in a statement to the Albuquerque Journal. "As part of constitutional policing, [the Albuquereque Police Department] can continue to seize assets in cases where there has been a conviction. I directed APD to implement this change and have requested City Council to update the ordinance."

Under typical civil asset forfeiture laws, police can seize property they claim is connected to criminal activity, whether or not the owner is charged with a crime, and keep some or all of the proceeds. Police say civil forfeiture is a vital tool to disrupt drug trafficking and other criminal activity. Civil liberties groups say it provides too little protection for property owners and creates too much profit incentive for law enforcement.

Bipartisan concern about those issues led New Mexico to essentially ban civil asset forfeiture in 2015. The law, unanimously approved by the legislature and signed by Republican Gov. Susan Martinez, allows forfeiture only when there is an accompanying criminal conviction.

Albuquerque ignored the reforms, however, arguing that its forfeiture ordinance was not pre-empted by the new law. At the time, the city was seizing about 1,000 cars a year from residents, even in cases where someone other than the owner was driving.

One of those residents was Harjo, whose car was seized after her son drove it while drunk. In 2016, with help from the Institute for Justice, she filed a federal lawsuit, arguing that the city's lucrative vehicle seizure program conflicted with state law and was "driven by a pernicious—and unconstitutional—profit incentive," in violation of her 14th Amendment due process rights.

"It's a scam and a rip off," Harjo said 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." The city offered to give Harjo her car back for $4,000—a typical settlement tactic—but she refused to pay up.

Two state lawmakers also sued the city in 2015 for its refusal to comply with the new state law, but their case was dismissed due to lack of standing. As the city's forfeiture program continued to attract criticism, revenues from vehicle seizures declined significantly, from $1.81 million in 2010 to $598,000 by 2017, the Albuquerque Journal reported.

Facing a lawyered-up, very determined Harjo, Albuquerque returned her car in 2016 in an attempt to render her lawsuit moot and keep its program intact. But in a March 30 opinion, U.S. District Judge James Browning allowed the case to proceed, warning the city that Harjo had raised plausible claims that the city's profit incentive in seizing cars and its hearing process violated her constitutional rights.

Browning said Albuquerque's ordinance unconstitutionally forced owners to prove themselves innocent. "The Court concludes that the Forfeiture Ordinance's innocent owner defense violates due process," he wrote, "because innocent owners have a great interest in their vehicle, and there is a significant risk of erroneous deprivation flowing from placing the burden of proof on innocent owners." Browning also concluded that New Mexico's reforms pre-empted Albuquerque's ordinance but dismissed that claim to allow state courts to sort the issue out.

Robert Everett Johnson, an attorney at the Institute for Justice, which is representing Harjo, says the mayor's announcement "is a welcome change in the city's position."

"For years Albuquerque refused to abide by state law," he continued. "Now we have to see if the city council will walk the walk and fully embrace the New Mexico Forfeiture Reform Act, including getting rid of policing for profit altogether. We're going to keep on fighting to vindicate not only Arlene's rights, but the constitutional rights of everyone in Albuquerque and New Mexico."

Drug policy reform groups also applauded this week's announcement. "Ridding our state of unconstitutional municipal civil asset forfeiture programs is just one more important step towards repairing some of the damage the drug war has inflicted upon our society and system of justice," Emily Kaltenbach, director of the Drug Policy Alliance's New Mexico office, said in a statement. "Mayor Keller is leading on this issue and setting the right example for other municipalities across the state."

Photo Credit: Institute for Justice

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  • Just Say'n||

    No comment from libertarian chairman, BUCS, who comments here? Isn't he running for mayor there?

  • Citizen X - #6||

    He got distracted by a new sub-sub-sub-genre of pornography that is tangenitally related - Ass-et Forfeiture.

  • Just Say'n||

    And I have bad comments?

  • Chipper Morning Baculum||

    There are no bad comments, only bad commenters.

  • Just Say'n||

    So says Scott Bakula

  • Citizen X - #6||

    It's not bad if it's probably true!

  • BestUsedCarSales||

    You can tell it's not true, because, as a true libertarian (the only one here), I would never make someone forfeit their ass to me. They give it of their own free will, in mutually beneficial exchange.

  • gormadoc||

    The best I can do with that is "ass et four footer."

    I don't know if that's the Latin 'et' or the past tense of 'eat', but I prefer the former.

  • BestUsedCarSales||

    I got so high, that I thought I was running for Mayor of Phoenix, but ended up running for Mayor of Albuquerque.

  • Just Say'n||

    Judging by your statements, it also seems that you (Sarwark) think you're running the Green Party.

  • BestUsedCarSales||

    I'm pretty damn high.

  • Dillinger||

    word.

  • Chipper Morning Baculum||

    The Green Party has no members in the Southwest, for the very simple reason that Southwesterners don't understand that green is supposed to refer to the color of nature.

  • Agammamon||

    True dat. I get uncomfortable traveling through the northeast because of all the weird looking ground.

  • Fist of Etiquette||

    As the city's forfeiture program continued to attract criticism, revenues from vehicle seizures declined significantly, from $1.81 million in 2010 to $598,000 by 2017...

    I blame, as always, Cash for Clunkers.

  • Chipper Morning Baculum||

    Fist has been blaming Cash for Clunkers ever since he accidentally left his wedding ring in the glove box of the old Trans Am when he turned it in to get the cash he used for that "FILTHACRAPIA" sky writing ad during an Eagles game.

  • Fist of Etiquette||

    Everyone knows I won't wear jewelry.

  • Citizen X - #6||

    Aside from the Prince Albert, that is.

  • BestUsedCarSales||

    That's not jewelry, that's equipment.

  • NotAnotherSkippy||

    Good for her, bad for taxpayers if she wins. All judgements against the government should come out of their respective pension funds.

  • Citizen X - #6||

    That's if the functionaries directly responsible can't pay up personally.

  • Fist of Etiquette||

    Albuquerque could do worse to you.

  • Gaear Grimsrud||

    4/14/2010: Officer Zach Stephenson Benjamin Marquez Marquez shot 3-4 times in upper body *Marquez smoking a cigarette while pumping gas at Broadway and Gibson

    5/10/2011: Officer Sean Wallace Alan Gomez[29] *Gomez killed while holding spoon
    *wrongful death suit settled in December 2013 for $900,000[30] *"the officer shot Gomez without verifying a threat, and after receiving information that Gomez could not have been a threat because he was no longer armed."[31]

    Jesus Fucking Christ.

  • Juice||

    No person shall ... be deprived of ... property without due process of law; nor shall private property be taken for public use, without just compensation.

    Why does this not apply to civil asset forfeiture?

  • Francisco d'Anconia||

    Why does this not apply to civil asset forfeiture?

    due process of law = the po po taking it from you

  • Rich||

    That's doo-doo process of law.

  • Citizen X - #6||

    It starts with F and ends with "-uck you, that's why."

  • BestUsedCarSales||

    "For every time you try to stand against the police, the get the judges to buck you, that's why."

  • Jerryskids||

    Procedures were followed. What did you think "due process" meant?

  • Diane Reynolds (Paul.)||

    "Given changes in state law and recent court rulings, it's time to update the city's policy on vehicle seizures,"

    That's an... interesting way of wording that you just broke the law.

    Given changes in state law and recent court rulings, it's time to update my policy of shooting Prius drivers in the face for driving 52mph in the left lane.

  • Citizen X - #6||

    Given changes in state law and recent court rulings, it's time to update Crusty's policy of creating human centipedes and making them fight to the death.

  • gormadoc||

    He has been ignoring diversity requirements for too long!

  • Rich||

    The city offered to give Harjo her car back for $4,000

    You mean *and* $4,000, right? RIGHT?!

  • Gaear Grimsrud||

    Seriously, Institute for Justice is a diamond shining in a huge pile of shit. They've done more to defend individual rights
    than any legislature will ever do. These people have my undying respect and admiration.

  • Sevo||

    "Seriously, Institute for Justice is a diamond shining in a huge pile of shit"

    IJ ROCKS!
    Others talk about what will happen, IJ sends you notes about what they just did.

  • I'm Not Sure||

    "Police say civil forfeiture is a vital tool to disrupt drug trafficking and other criminal activity."

    "Police say?" Doesn't everybody know that the police can lie to you if they want to?

  • MatthewSlyfield||

    "Doesn't everybody know that the police can lie to you if they want to?"

    If they want to? Could they tell the truth if their lives depended on it?

  • crufus||

    It only took Albuquerque three years to stop breaking the law.

    I imagine that there will be a massive class action lawsuit to recover the millions of dollars stolen plus damages.

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