New Mexico Senate Passes Bill to Close Asset Forfeiture Loophole Used By Cities

SANTA FE, N.M. (Feb. 28, 2017) – A New Mexico bill that would close a loophole some city officials claim allows them to continue with civil asset forfeiture despite a 2015 law meant to end the practice unanimously passed the Senate last week.

Daniel A. Ivey-Soto (D-Albuquerque) filed Senate Bill 202 (SB202) on Jan. 26. The legislation changes language in current asset forfeiture law to ensure its provisions explicitly apply to local law enforcement and municipal forfeiture programs.

Last Wednesday, the Senate passed SB202 by a 40-0 vote.

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 have 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.

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.

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 SB202 would add specific language to the state asset forfeiture law that would expressly prohibit these municipal forfeiture programs, shutting them down for good.

Sen. Ivey-Soto told the Institutue of Justice the intent was to end such programs all along. He even participated in a law suit 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.

The inclusion of provisions barring state and local law enforcement agencies from passing off cases to the feds is particularly important. In several states with strict asset forfeiture laws, prosecutors have done just that. By placing the case under federal jurisdiction, law enforcement can bypass the need for a conviction under state law and collect up to 80 percent of the proceeds from forfeited assets via the federal Equitable Sharing Program.

For example, California previously had some of the strongest state-level restrictions on civil asset forfeiture in the country, but law enforcement would often bypass the state restrictions by partnering with a federal asset forfeiture program known as “equitable sharing.” Under these arrangements, state officials would simply hand over forfeiture prosecutions to the federal government and then receive up to 80 percent of the proceeds—even when state law banned or limited the practice. According to a report by the Institute for Justice, Policing for Profit, California ranked dead last of all states in the country between 2000 and 2013 as the worst offender. During the 2016 legislative session, the state closed the loophole.

The New Mexico reform that went into effect in 2015 does close this loophole 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.

Why?

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.

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SB202 now moves to the House for further consideration. It was referred to the House Judiciary Committee where it must pass by a majority vote before moving forward in the legislative process.

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