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Judge tosses out vehicle seizure law

Cars seized by the Albuquerque Police Department sit in a lot. A federal judge has ruled that the city’s vehicle seizure law is unconstitutional. (Roberto E. Rosales/Albuquerque Journal)

Copyright © 2018 Albuquerque Journal

Albuquerque’s controversial vehicle-seizure program is likely to undergo changes after a U.S. district judge ruled that the program is unconstitutional, according to attorneys for a woman who filed a lawsuit against the city.

The city for years has allowed police to take cars from anyone arrested on suspicion of a second or subsequent drunken-driving offense, or someone arrested for driving on a revoked license. The vehicles were seized regardless of whether the driver was the owner.

U.S. District Judge James Browning’s 105-page opinion, filed over the weekend, found problems with the city’s policy of making vehicle owners prove their innocence when their car was seized after being driven by someone else.

And the judge said it was improper that the money the city collected from the program was used to pay the salaries of employees who work in the program.

“The forfeiture program … violates procedural due process, because owners have to prove that their cars are not subject to civil forfeiture,” Browning wrote.

The city probably will have to change its ordinance to bring its program in line with the judge’s ruling, said Robert Everett Johnson, an attorney for the Institute for Justice, which worked on the case.

“If the city were to continue operating the (seizure) program the way it’s run now, that would be like saying ‘I triple-dog dare you’ to the court,” he said.

Mayor Tim Keller’s administration previously said it would give vehicle owners who weren’t driving when their cars were seized more protections than the previous city administration. But no changes have been made in the law.

“This ruling confirms our concerns with the past approach and the need to protect the constitutional rights of people in our community,” Alicia Manzano, a spokeswoman for the Mayor’s Office, said in a statement. “At the Mayor’s direction, the City’s Legal department has been working to update the program, including limiting it to cases where there has been a conviction based on the new state law.

“The City’s legal team will analyze the impact the ruling will have,” she said. “Meanwhile, APD is focusing efforts on effectively combating drunk driving by doubling the number of traffic stops and increasing DWI checkpoints and saturation patrols.”

Under the current ordinance, owners who were not driving would be faced with fines, fees and administrative hearings to get their cars back. The city often would agree to release the vehicle for thousands of dollars and a boot agreement.

The judge’s ruling came in a case brought by Arlene Harjo, an Albuquerque woman who lent her Nissan Versa to her son, who then took her car to Clovis without permission and was arrested on suspicion of drunken driving, according to court filings.

The city demanded that Harjo pay it $4,000 and agree to have her car booted for 18 months before it would release it to her, according to the lawsuit.

The city has since returned her vehicle.

Browning found the program unconstitutional, partly because it required vehicle owners to prove their innocence after their cars were taken.

“The City of Albuquerque’s interest, however, in keeping the car after the initial seizure is not all that great when confronted with an innocent owner or an owner not involved in the DWI, because there is little to no evidence that the car is dangerous in that owner’s hands – at least the car is no more dangerous than a car is in anyone’s hands,” he wrote.

Browning also took issue with the way the city used funds from the seizures and forfeitures to pay salaries of employees who worked in the program. He said the funds should go to the city’s general fund, then be appropriated for seizure program operations.

Johnson said Browning’s ruling could affect municipalities around the country that run vehicle seizure programs similar to the one in Albuquerque.

A few cities in New Mexico – including Santa Fe – also have vehicle seizure programs.

Brad Cates, a New Mexico attorney who worked on the case, said Albuquerque needs to provide innocent owners a quick way to get their vehicles back if they were seized when being driven by somebody else.

Cates said Albuquerque also needs to have proceeds from forfeitures and seizures go to the general fund instead of directly to employees who work in the program.

“None of us involved in the case want drunken drivers on the streets,” he said. “But there’s a right, constitutional way to do” vehicle seizures.

In March, Browning ruled that Albuquerque’s vehicle seizure program was not in line with New Mexico forfeiture laws, which were changed in 2015 to prohibit municipalities from benefiting financially over civil forfeiture actions. New Mexico law does allow for criminal forfeiture.

Browning didn’t take action against any New Mexico programs, saying he wanted state courts to first rule on ongoing litigation.

Browning’s recent ruling found broader constitutional problems with the way Albuquerque seizes vehicles.

“Civil forfeiture is one of the most serious assaults on private property rights in the nation today,” attorney Robert Frommer, who is also an attorney for the Institute for Justice, said in a statement. “For decades, civil forfeiture has lured officials away from impartial enforcement of the law and toward policing for profit. Today’s ruling striking down Albuquerque’s forfeiture program is a major step towards ending forfeiture across not only New Mexico, but throughout the United States.”

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