Last week, New Mexico Gov. Michelle Lujan Grisham signed a bill into law closing a loophole some city officials claim allows them to continue with civil asset forfeiture despite a 2015 law meant to end the practice.
Rep. Christine Chandler (D-Los Alamos) sponsored House Bill 312 (HB312). The legislation changes language in current asset forfeiture law to ensure its provisions explicitly apply to local law enforcement and municipal forfeiture programs.
In July 2015, a law went into effect ending civil asset forfeiture and prohibiting the state from taking property without a criminal conviction. The New Mexico law also closed a loophole that could have allowed law enforcement agencies to bypass more stringent state asset forfeiture laws by passing cases off to the federal government under its Equitable Sharing forfeiture program. It was the first state in the country to institute such sweeping asset forfeiture reforms.
But even with the tough new forfeiture law on the books, police in Albuquerque and other municipalities continued civil asset forfeiture programs, claiming the new state law does not apply to them. An Albuquerque city ordinance allows police to seize vehicles from persons arrested on suspicion of a second drunk-driving charge, or on suspicion of driving on a suspended or revoked license due to a prior DWI. Oftentimes, the vehicle seized does not even belong to the person charged with the DUI offense. Nevertheless, the owner must fight to get the vehicle back through the draconian civil forfeiture process the state intended to eliminate. According to the Institute of Justice, the ordinance also allows local law enforcement officers to seize other property without a conviction.
In December, a state appellate court overruled Albuquerque’s interpretation of the statute and ordered the city to shut down the program. But the case only specifically addressed that city and it was just one among many flouting the law. Revising the statute language ensures local police cannot circumvent the intent of the law.
According to the Albuquerque Journal, the city seized 1,272 vehicles and brought in over $1.2 million in 2014. In fact, the process is so lucrative the City of Albuquerque announced plans to build a new complex to store seized vehicles and serve as a base of operations for the program in the fall of 2015. This was after the state law intended to end civil forfeiture went into effect. According to Forbes, Santa Fe police have seized nearly 1,600 vehicles, auctioning off 362 of them since the forfeiture reforms went into effect.
City officials claim the state law does not apply to municipal forfeiture programs because the law does not address them specifically.
“Do you know how many times the word ‘civil’ appears in [House Bill] 560?” Alfred Walker, a Santa Fe assistant city attorney who oversees vehicle forfeitures, asked the crowd of more than 100 during a Santa Fe’s second annual vehicle forfeiture conference. “It appears zero times. It seems to me if you want to preempt municipal civil forfeiture acts, you need to say that.”
Some state officials echoed this argument.
“Municipal DWI car seizure programs are not affected by HB 560 because they don’t occur under the state’s forfeiture act, the law that the bill amends,” New Mexico Department of Public Safety secretary Greg Fouratt said in a statement to the Albuquerque Journal in 2015.
Passage of HB312 adds specific language to the state asset forfeiture law that expressly prohibits these municipal forfeiture programs, shutting them down for good.
Last year, Daniel A. Ivey-Soto (D-Albuquerque) told the Institute of Justice the intent was to end such programs all along. He even participated in a lawsuit against the city.
“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.”
The situation in New Mexico underscores an important reality. Civil asset forfeiture serves as a massive cash cow for law enforcement agencies and they will aggressively oppose any efforts to reform the system – up to and including simply ignoring the law. This is why closing a federal loophole is an important part of any forfeiture reform efforts. This is particularly important in light of a policy directive issued in July 2017 by then-Attorney General Jeff Sessions for the Department of Justice (DOJ).
A federal program known as “Equitable Sharing” allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government through a process known as adoption. The DOJ directive reiterates full support for the equitable sharing program, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future.
Law enforcement agencies can circumvent more strict state forfeiture laws by claiming cases are federal in nature. Under these arrangements, state officials simply hand cases over to a federal agency, participate in the case, and then receive up to 80 percent of the proceeds. However, when states merely withdraw from participation, the federal directive loses its impact.
Until recently, California faced this situation. The state has some of the strongest state-level restrictions on civil asset forfeiture in the country, but state and local police were circumventing the state process by passing cases to the feds. According to a report by the Institute for Justice, Policing for Profit, California ranked as the worst offender of all states in the country between 2000 and 2013. In other words, California law enforcement was passing off a lot of cases to the feds and collecting the loot. The state closed the loophole in 2016.
The New Mexico reforms that went into effect in 2015 effectively withdrew the state from the federal program with specific language.
As the Tenth Amendment Center previously reported the federal government inserted itself into the asset forfeiture debate in California. The feds clearly want the policy to continue.
We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its unconstitutional “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.