In a sweeping reform, New Mexico enacted legislation to require a criminal conviction as a prerequisite to forfeiture, and direct any forfeiture revenue to the general fund last year. But law enforcement agencies have been refusing to abide by the new Forfeiture Reform Law.
Lisa Torraco and Daniel Ivey-Soto, two state senators, have partnered with the Institute for Justice (IJ), a nonpartisan, public interest law firm, and filed a lawsuit to enjoin Albuquerque’s forfeiture ordinance.
Under the ordinance, people do not have to be convicted or even charged to lose their property. In the words of Stanley Harada, Albuquerque’s Chief Hearing Officer, innocent owners are “considered ‘alleged’” until they make their case at a hearing. But under New Mexico’s new reforms, the government must bear the burden of proof for forfeiture proceedings—just as it does for criminal cases.
Meanwhile, to forfeit property, Albuquerque need only show probable cause—the same low standard used to obtain a warrant. In DWI cases, car owners must file a request within ten days after receiving notice. Requesting hearings costs $50, while seized property can accrue $10 storage fees per day.
Records show that between 2010 and 2014, Albuquerque seized over 8,300 cars and generated $8.3 million in forfeiture revenue. Funds collected through forfeiture can even pay the salaries for the very attorneys overseeing the forfeiture. Albuquerque has taken so many cars, police are now eyeing a new complex to store seized vehicles.
Ivey-Soto begs to differ. “Civil forfeiture is abolished,” he said. “We know what we intended when we passed the reforms. And we didn’t include an exception for Albuquerque—or any other city.” IJ also points to the law itself, which includes, as one of its purposes, to “ensure that only criminal forfeiture is allowed in this state.”
The case has enormous ramifications, not just for other New Mexican cities that continue to operate municipal forfeiture ordinances, but for the nation at large. According to a recent report by the Institute for Justice, New Mexico’s forfeiture laws are “now the best in the country” and “set a clear example for other states to follow.” Only eight other states require criminal convictions as a prerequisite to forfeiture in many or all cases, while just six other states and the District of Columbia ban police from self-financing through forfeiture. Until this year, only one state, North Carolina, largely did not have civil forfeiture laws on its books.
Impetus for reform began in part after the Institute for Justice and The New York Times publicized comments made by Pete Connelly, formerly the city attorney for Las Cruces, N.M. Speaking at a vehicle forfeiture conference in 2014, Connelly advised attendees on how to maximize revenue (one tip: seize flashy cars). He even told other government officials that, through forfeiture, “We could be czars. We could own the city.”
“No one is above the law, least of all our city attorneys who are charged with upholding it,” Torraco said.