SANTA FE, NM— On Friday, as reported by the Abq Report, a spokesperson from Albuquerque City Mayor Tim Keller's Administration announced the City would be ending their asset forfeiture program, meaning that police will no longer be allowed to seize property unless there is a criminal conviction. This decision brings the City in compliance with New Mexico state law and comes on the heels of a decision by a US District Court Judge James Browning that said that "the city's ordinance violated federal due process protections and the 2015 state law which said government's can't seize a person's property unless there is a criminal conviction in the case."
"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,” said Emily Kaltenbach, State Director for the Drug Policy Alliance's New Mexico office. “Mayor Keller is leading on this issue and setting the right example for other municipalities across the state."
In 2015, Governor Susana Martinez signed House Bill 560 into law, ending the practice of civil asset forfeiture in New Mexico. Civil asset forfeiture, also known as “policing for profit,” allows law enforcement officers to seize personal property without ever charging—much less convicting—a person with a crime. Property seized through this process often finds its way into the department’s own coffers. HB 560 passed unanimously in the legislature, replacing civil asset forfeiture with criminal forfeiture, which requires a conviction of a person as a prerequisite to losing property tied to a crime. New Mexico has the strongest protections against wrongful asset seizures in the country.
However, after the 2015 state law went into effect, many home rule cities with their own asset forfeiture programs, like Albuquerque, refused to follow state law. They continued to seize assets, primarily vehicle from DWI suspects, regardless of whether the person was guilty or owned the car. DWI suspects usually do not drive their own cars and innocent owners are the ones that get their cars seized and forfeited.
Prior to this decision, the Albuquerque program vehicle seizure program made no distinction between a suspected person under the influence and an innocent third party. The system imposes steep costs on innocent citizens who have to pay for the privilege of a hearing to prove that the property is theirs in addition to sometimes paying daily parking fees that can add up to thousands of dollars. In April 2015, the Albuquerque Journal reported "the city scheduled 14 hearings in one week for owners whose vehicles were recently seized under the ordinance. Of those cases, 10 owners weren’t driving the car at the time it was seized. In some of those cases, the owners said the vehicles were stolen or taken by a relative without permission, according to city documents."
"Like other drug war programs, civil asset forfeiture is disproportionately used against poor people of color who cannot afford to hire lawyers to get their property back," stated Emily Kaltenbach, State Director for the Drug Policy Alliance's New Mexico Office.
Although there is growing momentum behind reforming civil asset forfeiture laws in state houses and city halls across the country, reforms have stalled at a federal level. In 2015, Senator Rand Paul (R-KY) in the Senate and Rep. Tim Walberg (R-MI) in the House introduced the Fifth Amendment Integrity Restoration (FAIR) Act. The FAIR Act eliminates policing for profit and increases the federal government's burden of proof in civil forfeiture proceedings. Unfortunately, this bipartisan effort has been put on the back burner during the Trump Administration with Attorney General Session's releasing a directive expanding the Federal government's use of asset forfeiture.