The City of Albuquerque runs a civil forfeiture machine—a program that “earns” the city over $1 million every year seizing and forfeiting cars.[i] Property owners caught in this machine face a maze of procedural obstacles, a lopsided legal code that favors police and prosecutors at every turn, and punishing financial penalties designed to make it too expensive for property owners to assert their rights.
Other cities in New Mexico have followed Albuquerque’s example. Among others, Santa Fe and Las Cruces both have forfeiture programs inspired by Albuquerque.
All that was supposed to change on July 1, 2015. That was the effective date for New Mexico’s Forfeiture Reform Law, a measure passed by a unanimous state legislature to end the practice of civil forfeiture. The purpose of the Forfeiture Reform Law is clear: “to ensure that only criminal forfeiture is allowed in this state.”[ii]
But police and prosecutors in Albuquerque—and other cities across New Mexico—are not following the law. The financial incentive created by civil forfeiture has turned law-enforcers into law-breakers, as Albuquerque’s civil forfeiture machine continues to run despite the clear command of the Forfeiture Reform Law.
That ends now.
Senators Lisa Torraco and Daniel Ivey-Soto, two New Mexico legislators at the forefront of the forfeiture reform effort, have partnered with the Institute for Justice to enforce the Forfeiture Reform Law. This suit will shut down Albuquerque’s civil forfeiture machine and uphold the rights of property owners across the state. Civil forfeiture is now illegal in New Mexico, and it has to stop.
A Million Dollar Forfeiture Machine
Run from a seventh-floor office in a nondescript office building, Albuquerque’s forfeiture machine churns through more than one thousand cases every year. In 2014, Albuquerque’s vehicle forfeiture program seized 1,272 cars and earned more than $1.2 million.[iii] Between 2010 and 2014, Albuquerque seized over 8,300 cars—approximately one car for every 66 residents of the city.[iv]
While Albuquerque’s program is often publicly associated with DWI offenses, the program is actually far broader in scope. City officials claim authority to seize property that they believe to be associated with a broad swath of criminal offenses.
Importantly, because Albuquerque’s program uses civil forfeiture, Albuquerque law enforcement officials seize cars without convicting anyone of a crime. Under the rules set by the City for its forfeiture program, law enforcement only needs to show that it has “probable cause” to believe a crime occurred—the lowest standard known to the law.[v] And this “probable” crime need not have been committed by the property owner; the allegedly-guilty party could be a child, a friend, or even a total stranger. The City then forces property owners to prove their own innocence to get their cars back.[vi]
Even property owners who succeed in proving their innocence are charged towing and storage fees to recover their cars—fees that increase, at a rate of $10 per day, with every day that property owners choose to contest the forfeiture.[vii]
Ultimately, with the deck stacked so firmly against them, and the cost of fighting mounting by the day, the vast majority of people caught up in this system simply give up or agree to settlement terms dictated by the City.
And when Albuquerque takes property through civil forfeiture, the proceeds go to the very police and prosecutors who do the forfeiting. Money raised through civil forfeiture is used to buy new equipment, to pay for travel and other perks, and even to pay the salaries of the officials who oversee the forfeiture program.[viii]
Shockingly, Albuquerque plans for these forfeiture revenues in its annual budget. The City’s 2016 budget, for instance, includes as a “performance measure” for the upcoming year a target to conduct 1,200 vehicle seizure hearings, to release 350 vehicles under agreements with property owners, to temporarily immobilize 600 vehicles, and to sell 625 vehicles at auction.[ix]
While other cities in New Mexico have forfeiture programs, Albuquerque’s is the oldest and the largest. In the words of former Las Cruces City Attorney Harry “Pete” Connelly, when officials from another city want to know how to set up a civil forfeiture program, they go “to the masters of the sky, the empire of all empires: You go to Albuquerque.” [[0:53:55]]
“We Could Be Czars”
Civil forfeiture leapt to the attention of New Mexico’s legislators in late 2014, when the Institute for Justice unearthed video footage of that same Las Cruces City Attorney and ignited a firestorm of public outrage.
Connelly was speaking at the Santa Fe Vehicle Forfeiture Conference, an obscure legal conference where New Mexico city attorneys gather to discuss their forfeiture programs. Standing before a friendly audience, Connelly articulated truths about civil forfeiture that government attorneys rarely put into words.
Connelly opened his remarks with an important message for his fellow city attorneys: “If you make money on motor vehicle seizures, don’t feel bad. It’s okay.” [[0:57:10]]
Connelly referred to civil forfeiture as a “gold mine,” [[0:58:50]] and property seized through civil forfeiture as “little goodies,” [[1:04:30]] and he urged his audience to ask “where can you go with it?” Today, cities seize cars, “but could you take an airplane? That’s a vehicle. Can you take bicycles?” [[1:00:08]]
Returning to the topic of automobiles, Connelly explained that “we always try to get every once and a while maybe a good car.” [[1:03:05]] He told a story in which police seized a luxury vehicle: “We thought, damn. We have a 2008 Mercedes Benz. This is going to go to auction. This is going to be great. We put all our junk out there and this is going to be the big seller.” [[1:04:00]]
Connelly also stopped to fantasize for a moment about all the other property his department might be able to seize: “We could be czars,” he said, to general laughter from the crowd. “We could own the city. We could be in the real estate business.” [[1:22:41]]
A “Neutral” Hearing Officer
Connelly’s remarks are so colorful that they threaten to overshadow the contributions of another panelist at the Conference—Albuquerque Chief Hearing Officer Stanley Harada. The Chief Hearing Officer is supposed to be a neutral judge in Albuquerque’s forfeiture machine; he’s the guy who should act as a check when police and prosecutors go too far. But his comments during the conference suggest that he is firmly aligned with the city’s program.
Asked if he had ever found that police acted wrongly by seizing a car, the Chief Hearing Officer revealed that, in the seven years he has worked as a hearing officer, he has found a seizure unlawful in only two cases. [[3:07:35]]
The Chief Hearing Officer made clear that he is more than just a judge—he is also the chief architect of Albuquerque’s forfeiture machine. He recalled that he was hired by the city in the 1990s to overhaul the system, in order to churn cases more quickly and efficiently. He stated that he was hired because he had “been with a high volume personal injury law firm for a number of years” and because Albuquerque’s higher ups “knew that I knew how to deal with high volume systems.” [[1:49:30]]
The Chief Hearing Officer explained that one of the changes that he made to the program, in the 1990s, was to eliminate any requirement of a criminal conviction. He stated that requiring a conviction to seize property was a “problem” and that it “seemed to be real unfair to have to release a vehicle to someone” who had not been convicted of a crime. [[2:16:50]]
The Chief Hearing Officer indicated that he is well aware of the profit motive that underlies civil forfeiture. He noted that Albuquerque’s “ordinance was written specifically” to provide that money raised through the ordinance must be put back into the program, which “allowed me to resist former mayors wanting to transfer it all to the general fund.” [[1:20:30]]
The Chief Hearing Officer also stated that Albuquerque officials “would rather not talk about” the full amount of property that is seized and forfeited “because then it starts to become a bullet point for people who are trying to fight the program.” [[2:32:50]]
New Mexico’s Landmark Reform
When the New York Times reported about the videos, the program met an exceptionally hostile public reception. New Mexico’s legislators were spurred to action and—in an unusual display of bipartisan unity—unanimously enacted a law to abolish civil forfeiture.
The Forfeiture Reform Law declares, in no uncertain terms, that it is intended to “ensure that only criminal forfeiture is allowed in this state.”[x] Under criminal forfeiture—unlike civil forfeiture—the government must obtain a conviction before it can take property.
Elsewhere, the law reiterates the point: “A person’s property is subject to forfeiture if . . . the person is convicted by a criminal court.”[xi]
The Forfeiture Reform Law also ends the profit incentive associated with civil forfeiture. Whereas money seized through civil forfeiture goes to the very same law enforcement agencies involved in the seizure, the Forfeiture Reform Law provides that all proceeds from forfeiture shall be deposited in the general fund.[xii]
New Mexico’s forfeiture laws now provide the strongest protections for property owners of any state in the country. Policing for Profit, a report issued by the Institute for Justice, rates civil forfeiture laws nationwide. While New Mexico earned a D- before the reforms, today New Mexico’s forfeiture laws earn an A-.[xiii] No other state scores such high marks.
As the authors of Policing for Profit write, “New Mexico’s reforms set a clear example for other states to follow in protecting people from unjust forfeitures.”[xiv]
These reforms are immensely popular with the public. A recent opinion poll, conducted through Google Consumer Surveys, found that over 80% of New Mexicans agree that no one should have their property taken by police and prosecutors without first being convicted of a crime.
Today: A Bigger Parking Lot
Albuquerque officials have responded to these landmark reforms with defiance. Albuquerque has continued to run its lucrative civil forfeiture machine, despite the legislature’s clear command that only criminal forfeiture is allowed.
On a recent Thursday in November, for instance, documents obtained by the Institute for Justice show that the City held forfeiture hearings involving six separate cars. The procedures that the City followed to forfeit property in these cases are the same procedures that the City followed before the passage of the Forfeiture Reform Law. Most importantly, the City still does not require that anyone be convicted of a crime in order to lose their property.
In other words, Albuquerque’s police and prosecutors are continuing on as if nothing at all has changed.
Albuquerque is so unbowed that it has announced that it will buy a new, bigger parking lot to store all the cars it plans to seize and forfeit in the future. Albuquerque’s City Council approved $2.5 million in bonds to pay for the lot, on the understanding that “the revenue source to pay the bonds will be revenues generated by the DWI Seizure program.”
Civil Forfeiture Turns Cops Into Robbers
Albuquerque’s defiance of the Forfeiture Reform Law should not be surprising, given the clear financial incentives for everyone involved in the program.
When Albuquerque seizes cars, and then sells those cars at auction, proceeds from the sales are used to fund the City’s vehicle forfeiture program. While these funds are used for a variety of purposes, perhaps the most important is to pay the salaries of people involved in the program.
This means that nearly everyone associated with the program, including many of its vocal public defenders, has a direct financial interest in seeing it continue.
And even city officials not involved in the program dip into this money pot, as the City uses clever accounting to distribute money from the vehicle forfeiture program to other priorities. A recent bill, for instance, used money from the forfeiture program to free up space in the budget for a fleet of new cars and an “educational building” for police.
Meanwhile, city officials also enjoy the ability to take seized cars out for a ride. In 2014, reports surfaced that employees of the vehicle forfeiture program were using cars from the impound lot for personal trips and even their daily commutes. In one case, the city spent $7,000 to fix up a seized Cadillac Escalade that an employee then used as her personal set of wheels.
All this creates a powerful financial incentive for city officials to bend and abuse the law. Indeed, in a recent report issued by the Institute for Justice, Bad Apples or Bad Laws?, two social scientists conducted an experiment to study the incentives created by civil forfeiture and concluded that “civil forfeiture encourages choices by law enforcement officers that leave the public worse off.”[xv]
Stacking The Deck Against Property Owners
Albuquerque’s civil forfeiture program appears designed with one end in mind: to process property owners quickly through the system, and ultimately to convince them to concede without a fight.
Following a seizure, the City gives property owners only 10 days to file paperwork to request a hearing to contest the forfeiture. Property owners are required to pay a $50 fee just to obtain a hearing. If they don’t, they automatically forfeit their right to contest the forfeiture.
At the hearing, the City’s rules place property owners at an inherent disadvantage. Attorneys for the City are only required to prove that police had “probable cause” to seize the property—the lowest legal standard.[xvi] Meanwhile, the City holds property owners to a higher standard—a preponderance of the evidence—to prove their innocence.[xvii]
Because innocence is a defense, property owners are presumed guilty.
Albuquerque’s Chief Hearing Officer has explained that he always refers to innocent property owners as “alleged innocent owners” because “until they go through the hearing, they are considered ‘alleged.’” [[2:43:45]]
Meanwhile, because these hearings are conducted informally, the City is not required to prove its case with evidence that would be admissible in a court of law.[xviii] The City’s Chief Hearing Officer explained: “I don’t think it would be fair to require the City to come with certified documents of conviction” to the hearing. [[2:50:50]]
Even property owners who eventually succeed are charged significant towing and storage fees.[xix] If a property owner puts up a vigorous defense, proceedings can stretch on for years—meaning even a victorious property owner may end up owing the City thousands of dollars in fees.
“Things That We’ve Heard So Many Times Before”
Precisely because Albuquerque’s forfeiture machine provides so few protections for the innocent, people who have done nothing wrong are caught up in the machine—forced either to forfeit their property or to agree to exorbitant settlement terms.
An article in the Albuquerque Journal reported several of these stories. Claudeen Crank, for instance, had her car seized after a complete stranger took the car on a drunken joy ride. The City initiated civil forfeiture proceedings against the car, in a case captioned City of Albuquerque v. One 2006 Kia.
Nearly anyone would say that Claudeen was the victim of a crime. But the City saw her as something else: A source of revenue.
The same article in the Albuquerque Journal reported other, similar cases. Marcial Gonzales, for instance, was forced to agree to pay $850 and have his car booted for 30 days after he allowed a friend to drive it—not knowing that the friend had a suspended license. Similarly, Jose Chavez, Jr. lost his car when his friend’s aunt asked to borrow his car to pick up her grandchildren; Jose told the Journal that he had no idea that her license had been revoked.
Court documents are full of similar stories—cars seized from people whose friends, relatives, or even total strangers allegedly used them to commit crimes.
Indeed, Albuquerque’s Chief Hearing Officer told the Journal that the alleged offense was committed by someone other than the property owner in approximately half of all cases.
Willard Davis, another Albuquerque hearing officer, told the Journal: “Those excuses, you hear them over and over again. People come in here and say things that we’ve heard so many times before.”
The Claim: Albuquerque Must Follow The Law
This lawsuit has been filed in state court on behalf of two sitting New Mexico Senators—one Democrat and one Republican. The lawsuit asks the court to force Albuquerque to follow the Forfeiture Reform Law and end its civil forfeiture machine.
The Forfeiture Reform Law is clear. Right up front, at the very beginning of the law, the State Legislature listed the “purposes of the Forfeiture Act” and stated that it was designed to “ensure that only criminal forfeiture is allowed in this state.”[xx] To accomplish that goal, the Legislature then listed the conditions that must be satisfied for a “person’s property [to be] subject to forfeiture”; one of those conditions is that the property owner be “convicted by a criminal court.” [xxi]
As if that were not clear enough, the law also states that “a court may order a person to forfeit” property only “[f]ollowing a person’s conviction for an offense to which forfeiture applies.”[xxii] And the law directs a court to “enter a judgment of forfeiture” only if “the criminal prosecution of the owner of the seized property resulted in a conviction.”[xxiii]
As a city in New Mexico, Albuquerque is subject to the Forfeiture Reform Law. The New Mexico Constitution allows Albuquerque to enact its own ordinances, but only if those ordinances are consistent with state law.[xxiv] State law controls when there is a conflict between state law and a municipal ordinance or policy.
Here there is just such a conflict. The Forfeiture Reform Law ends the practice of civil forfeiture in New Mexico; property in New Mexico is subject to forfeiture only following a criminal conviction. Yet Albuquerque continues to take cars using civil forfeiture. Albuquerque is defying the State Legislature, and the courts must now force Albuquerque officials to follow the law.
A Fig Leaf For The City’s Defiance
Almost as soon as the Forfeiture Reform Law was passed, city officials began looking for an excuse to continue the highly lucrative practice of civil forfeiture. Just weeks after Governor Martinez signed the bill, the Albuquerque Journal quoted the City’s Chief Administrative Officer referring vaguely to unspecified “ambiguity in the law” and casting doubt on whether the City would comply.
By the time New Mexico city attorneys gathered for the Second Annual Santa Fe Vehicle Forfeiture Conference in September 2015, city attorneys had coalesced around a purported explanation for their defiance. According to the city attorneys, the Forfeiture Reform Law does not apply to municipal civil forfeiture programs because it does not mention those programs explicitly. In this view, the Legislature was required to say that it was ending civil forfeiture—not only throughout the state—but specifically in Albuquerque and other cities.
That’s incorrect. The New Mexico Supreme Court has plainly explained that the kind of explicit reference to municipal ordinances that the city attorneys are demanding is not required: “[A]ny state law that plainly intends to preempt a governmental area should be sufficient without necessarily stating that affected municipalities must comply and cannot operate to the contrary.”[xxv]
There can be no serious question that the Forfeiture Reform Law was intended to end the practice of civil forfeiture in New Mexico. The law says as much at the very beginning—when setting forth the “purposes” for the law—and then repeats again and again that the government must obtain a criminal conviction before taking property.
Indeed, that is precisely why Senators Torraco and Ivey-Soto are filing suit. Says Senator Ivey-Soto: “Civil forfeiture is abolished. We know what we intended when we passed the reforms. And we didn’t include an exception for Albuquerque—or any other city.”
An Issue Of National Importance
Enforcing New Mexico’s Forfeiture Reform Law is an issue of importance not just for the people caught up in Albuquerque’s forfeiture machine. It is an issue of importance for the entire State and even the entire nation.
This lawsuit targets Albuquerque because it runs the oldest and largest civil forfeiture program in New Mexico. But a decision shutting down Albuquerque’s program will apply just as squarely to other cities across the state. When Albuquerque ends civil forfeiture, other cities will have to follow suit.
At the national level, moreover, New Mexico’s Forfeiture Reform Law has set a guiding example for the rest of the country. By abolishing civil forfeiture entirely in favor of criminal forfeiture, New Mexico went farther to protect property rights than any other state had gone before.
Precisely because New Mexico’s reforms serve as a beacon for other states, it is vitally important to see those reforms actually implemented. By ensuring that civil forfeiture does in fact come to an end in New Mexico, this lawsuit will point the way to ending civil forfeiture across the country as a whole.
Plaintiffs are two State Senators who played an essential role in bringing the Forfeiture Reform Law before the Legislature and then ensuring its passage into law.
Senator Lisa Torraco, a Republican representing Bernalillo County, was the initial sponsor for the Forfeiture Reform Law in the State Senate. She worked behind the scenes to secure support for the bill among her colleagues. And, when the bill was first presented on the floor of the Senate, it was presented in association with her name.
Senator Daniel Ivey-Soto, a Democrat also representing Bernalillo County, carried the bill on the floor of the Senate. Like Senator Torraco, Senator Ivey-Soto worked behind the scenes to secure support for the bill. And, when personal business forced Senator Torraco to be absent from the final vote, Senator Ivey-Soto stepped into her place and spoke in favor of the bill.
Both Senators Torraco and Ivey-Soto are attorneys and members of the defense bar, and both have seen Albuquerque’s forfeiture machine up close as part of their law practices. That experience contributed to their desire to see the forfeiture laws reformed.
These two legislators worked together—in a rare display of bipartisan unity—to secure the legislature’s unanimous approval of the Forfeiture Reform Law. Now, they are joining together again to see that the law is enforced.
The Litigation Team
The Institute for Justice attorneys representing Senators Torraco and Ivey-Soto are Robert Everett Johnson and Robert Frommer, who litigate economic liberty and property rights cases nationwide.
They are joined as local counsel by Brad Cates, a New Mexico attorney who was the primary author of the Forfeiture Reform Law. Cates oversaw the federal government’s civil forfeiture program from 1985 to 1989, but more recently he has become a vocal advocate for the abolition of the federal program and the abolition of civil forfeiture more generally.
The Institute For Justice
The Institute for Justice is the national law firm for liberty. IJ is a public interest law firm that advances a rule of law under which individuals can control their destinies as free and responsible members of society. Through litigation, communication, outreach and strategic research, IJ secures protection for individual liberty and extends the benefits of freedom to those whose full enjoyment is denied by the government. IJ is based in Arlington, Va., and has offices in Arizona, Florida, Minnesota, Texas and Washington state, as well as a Clinic on Entrepreneurship at the University of Chicago Law School.
IJ has come to the defense of Americans nationwide to fight civil forfeiture, including the owners of the family-run Motel Caswell in Massachusetts, the owner of L&M Convenience Mart in North Carolina, and a class of property owners in Philadelphia challenging that city’s forfeiture machine.
[i] Ryan Boetel, City’s Vehicle Seizure Law: You Don’t Have To Be Driving To Lose Your Car, Albuquerque Journal, April 26, 2015.
[ii] An Act Relating To Forfeiture, H.B. 560 § 2 (2014) (emphasis added).
[iii] Albuquerque Police Department, Annual Report (2014), available at http://documents.cabq.gov/police/albuquerque-police-annual-report-2014.pdf.
[iv] See Boetel, supra note 1; U.S. Department of Census, Quick Facts: City of Albuquerque, http://quickfacts.census.gov/qfd/states/35/3502000.html.
[v] Albuquerque Code § 7-6-2(D).
[vi] Id. § 7-6-7.
[vii] Id. § 7-6-2(D).
[viii] Id. § 7-6-2(E).
[ix] City of Albuquerque, Fiscal Year 2016 Approved Budget (July 2015), at 181, available at http://documents.cabq.gov/budget/fy-16-approved-budget.pdf.
[x] N.M.S.A. § 31-27-2(A) (emphasis added).
[xi] Id. § 31-27-4.
[xii] Id. § 31-27-7(B).
[xiii] Compare Marian R. Williams et al., Policing for Profit 78 (1st ed. 2010), with Dick M. Carpenter II, PhD, et al., Policing for Profit 108 (2d ed. 2015).
[xiv] Carpenter, Policing for Profit, at 23.
[xv] Bart J. Wilson and Michael Preciado, Bad Apples or Bad Laws? 21 (Sept. 2014.
[xvi] Albuquerque Code § 7-6-2(D).
[xvii] Id. § 7-6-7.
[xviii] Id. § 7-6-2(D).
[xix] Id. § 7-6-2(E).
[xx] N.M.S.A. § 31-27-2(A) (emphasis added).
[xxi] Id. § 31-27-4(A).
[xxii] Id. § 31-27-4(B).
[xxiii] Id. § 31-27-6(G).
[xxiv] See ACLU v. City of Albuquerque, 128 N.M. 315 (1999).
[xxv] Id. at 319 (emphasis added).