Commentary: In 2015, New Mexico outlawed civil forfeiture, the controversial law enforcement practice of seizing and selling property without charging an individual with a crime, let alone convicting them of one. Despite that groundbreaking legislation, Albuquerque law enforcement officials continue to flagrantly disregard the law, and seize and sell hundreds of cars each year.
Now, Albuquerque resident Arlene Harjo and the Institute for Justice are fighting back. Today, Ms. Harjo filed papers resisting the efforts of Albuquerque to forfeit and sell her two-year-old Nissan Versa, and she also sued the city to challenge the legality of the city’s entire forfeiture program. The lawsuit challenges Albuquerque’s continued use of civil forfeiture, despite it being outlawed in 2015, as well as the unconstitutional profit incentive built into the city’s civil forfeiture program.
Arlene Harjo has done nothing wrong. Even the city of Albuquerque acknowledges that she has done nothing wrong. But that fact hasn’t stopped city law enforcement officials from attempting to seize her car, sell it, and keep the proceeds. If the city succeeds, Arlene will be left with a $10,000 loan to pay off but no car to drive.
The city claims it can take Arlene’s car because her son, Tino, asked to borrow her car to drive to the gym in the middle of the day, but then took the car for a day-long trip and was found that evening allegedly driving under the influence of alcohol. Tino was previously arrested for driving under the influence of alcohol in 2009. During her initial hearing contesting the forfeiture, the hearing officer lectured Arlene for trusting her son, despite the fact that it has been seven years since his prior incident. Arlene does not approve of drunk driving; if Tino broke the law, she agrees he should be punished. But she does not see why she should be punished for something she did not do and never condoned.
“Arlene is being treated like a criminal, even though she has never even been accused of a crime,” said IJ Attorney Robert Everett Johnson. “This is exactly what New Mexico’s legislature voted to end when they abolished civil forfeiture last year, and now it has to stop.”
Arlene is not alone in dealing with Albuquerque’s illegal forfeiture machine, which brings in more than $1 million each year. Between 2010 and 2014, the city seized over 8,300 cars—approximately one car for every 66 residents. In a video unearthed by the Institute for Justice, Albuquerque’s Chief Hearing Officer Stanley Harada admits that approximately half of those cars belong to innocent owners like Arlene:
“It appears that about half of the vehicles that APD seizes are not owned by the offender that we confiscate it from. It's the mothers, the fathers, the wives, the girlfriends, the brothers, the uncles, the next door neighbor, and the stranger on the street.”
When Albuquerque sells a piece of forfeited property, the proceeds go to the very police and prosecutors engaged in 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. Shockingly, despite the city’s claim that civil forfeiture is a just another crime fighting tool, 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 sell 625 vehicles at auction.
“Arlene’s case is a perfect illustration of the way civil forfeiture incentivizes law enforcement to take property from people who have done nothing wrong,” said IJ Attorney Robert Frommer. “The financial incentive provided by civil forfeiture turns law-enforcers into law-breakers.”
The outrage of civil forfeiture first attracted attention in New Mexico after a series of videos uncovered by the Institute for Justice revealed that city attorneys across the state were engaging in widespread policing for profit. Following the release of the videos, in 2015 the New Mexico state legislature unanimously passed landmark legislation outlawing civil forfeiture.
If appropriately enforced, New Mexico’s reforms should provide the strongest protections for property owners of any state in the country. Unfortunately, the incentive to police for profit has led law enforcement officials in Albuquerque to openly flout the law. By shutting down Albuquerque's forfeiture machine, this lawsuit will rein in one of greatest remaining threats to property rights in New Mexico.
The Institute for Justice is aided by local counsel Asher Kashanian. IJ is leading the fight against civil forfeiture nationwide. To learn more about this case and IJ’s national efforts, visit www.ij.org or www.endforfeiture.com.