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

Albuquerque 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.”