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.”