Federal judge finds Albuquerque vehicle forfeiture program unconstitutional

July 31, 2018

A federal judge has ruled Albuquerque’s vehicle forfeiture program unconstitutional, saying it flips the concept of innocent until proven guilty by forcing property owners to assume the burden of proving their innocence and creates a financial incentive for police to seize property.

Albuquerque Mayor Tim Keller announced in April that the city would discontinue the program in light of the constitutional challenges, but the decision handed down Monday by United States District Court Judge James O. Browning also could have consequences for the city and county of Santa Fe.

Both have ordinances that allow them to seize the vehicles of people who have not been convicted of a crime in certain circumstances, generally related to DWI charges — something that became illegal statewide in 2015 when New Mexico became the first state to ban preconviction forfeitures.

Browning’s ruling decides a lawsuit filed by an Albuquerque woman, Arlene Harjo, against the city of Albuquerque. Harjo was represented by the Institute for Justice, an Arlington, Va.-based public interest law firm intent on eradicating programs that promote “policing for profit.”

Santa Fe County Attorney R. Bruce Frederick said in an email Monday afternoon that he had not seen Browning’s decision, but added his office had been reviewing the due process issues highlighted in Browning’s ruling since March, when the judge alluded to them in an order denying a motion to dismiss the case.

Frederick also said Santa Fe County Sheriff’s Office “is not enforcing” the vehicle forfeiture ordinance while the state Court of Appeals considers whether changes the Legislature made to the state’s Forfeiture Act in 2015 “preempt all local civil forfeiture ordinances.”

Sheriff’s Office spokesman Juan Rios confirmed in an email that the county stopped enforcing its ordinance July 25, two days after The New Mexican reported the Sheriff’s Office — and nearly every other law enforcement agency in the state — had not been complying with a portion of the state forfeiture law created in 2015 that requires them to file annual reports that detail whether they had seized any property.

Rios said Monday the county will start filing the annual report.

The city of Santa Fe — which made close to $500,000 from the sale of forfeited vehicles in 2017 — has been defending its program in several pending court cases.

Former City Attorney Alfred R. Walker took the position in those cases that the 2015 changes to state law — including those that ban civil forfeiture without a conviction and require proceeds from forfeited property to be turned over to the state — don’t apply to forfeitures made under the city’s own ordinance.

Asked to respond to the federal ruling Monday, city spokesman Matt Ross said via email: “The City Attorney’s Office has a copy of today’s ruling and is reviewing it. That’s all the comment we have for now.”

For the past two years, law enforcement agencies have largely failed to comply with a provision that requires them to file an annual report detailing their forfeitures with Department of Public Safety. The New Mexican also reported that a portion of the law that requires law enforcement agencies to turn forfeited currency or the proceeds generated from the sale of forfeited property to the state Treasurer’s Office also is not being strictly followed.

While New Mexico State Police reported having seized more than $200,000 over the past few years, the state Treasurer’s Office said it had no record of having received the money.

New Mexico State Police spokeswoman Lt. Elizabeth Armijo has referred questions on the topic to the Department of Public Safety, the agency tasked with collecting and publishing the forfeiture reports. DPS spokesman H.L. Lovato said the department “will be providing an accounting … perhaps as early as Tuesday.”