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Copyright © 2015 Albuquerque Journal
SANTA FE – Prompted by calls from across the political spectrum, New Mexico lawmakers took aim during this year’s 60-day legislative session at civil asset forfeiture – decried by some as “policing for profit.”
The measure, which was approved unanimously by the House and Senate, would prevent law enforcement from seizing money, cars or other types of property from people on civil grounds during an arrest or traffic stop on suspicion the property was connected to a crime.
The practice has funneled millions of dollars and property to state and local law enforcement agencies, which are now scrambling to ask Gov. Susana Martinez to veto the measure.
The forfeitures occur in various kinds of cases. For example, Albuquerque police stopped a father and son from Illinois for not signaling a turn and called in a federal agent who seized $17,000 in cash from them, though the men were never charged with a crime. The American Civil Liberties Union intervened and the men got their money back two years later.
The measure, House Bill 560, would not prevent forfeiture – of cars, houses or other assets – in criminal cases when a defendant is found guilty. It would, however, require proceeds from forfeitures to be put into the state’s general fund instead of being used to bolster individual law enforcement agencies’ budgets.
The bill creates a mechanism for individuals found not guilty to seek to reclaim their seized property upon acquittal.
During the session, an unlikely coalition of backers supported the bill. The alliance included the ACLU of New Mexico, the Drug Policy Alliance and the Rio Grande Foundation, an Albuquerque-based group that favors limited government and open markets.
While there was little formal opposition to the bill, law enforcement agencies across the state are lining up and asking Martinez to veto the measure.
Bernalillo County Sheriff Manuel Gonzales made that request in a letter sent to the governor Thursday.
“The passing of this legislation would cause a financial hardship on our department,” Gonzales said in the letter. “These monies are currently utilized to combat and thwart criminal activity such as drug trafficking and violent crimes.”
San Juan County Sheriff Ken Christesen, the chairman of the New Mexico Sheriff’s Association, said the organization is drafting a letter that asks for a veto. And Rick Tedrow, the district attorney in San Juan County and president of the New Mexico District Attorney’s Association, said the DA’s association also will ask for a veto.
“It’s a big deal to us. This bill would take money out of (law enforcement agencies’) hands and put it in the state general fund and we’ll never see it again,” Christesen said. “A lot of equipment and overtime wouldn’t happen because the counties don’t have the money. You’ll get less law enforcement.”
Christesen said it’s common practice across the state for agencies to seize money and property during drug-trafficking cases, and then put that money back into narcotics investigations to make undercover purchases and pay investigators’ overtime.
The state Department of Public Safety, in a fiscal analysis of the bill, warned the legislation would eliminate revenue that is “critical” to funding the agency’s investigations and operations. And the Law Offices of the Public Defender said it could need more funding to handle a likely uptick in forfeiture cases.
Supporters of the legislation, however, said seizing property from people who haven’t been convicted of a crime is unfair and should be brought to a stop.
Former Attorney General Hal Stratton, who testified in support of the bill in a House committee, said he helped craft the state’s forfeiture law while a member of the Legislature in the 1980s.
But he said that legislation was intended as a crime-fighting tool, not as a pretext for property to be seized from innocent individuals.
Steven Robert Allen, director of public policy for the ACLU of New Mexico, said recorded comments of a Las Cruces city attorney that were published in The New York Times last year increased public interest in the issue, but he said work on the bill already was underway.
“The system … is completely indefensible from a due process perspective and a property rights perspective,” Allen said.
The city attorney, Harry Connelly, was recorded at a conference talking about undercover officers ogling a suspected drunken driver with a “beautiful” Mercedes.
“And he gets out and he’s just reeking of alcohol. And it’s like, ‘Oh my goodness, we can hardly wait,'” he said.
Millions at stake
Albuquerque-area law enforcement agencies have received millions from seizures in recent years and they’ve been involved in controversial cases.
Since the 2010 fiscal year, Albuquerque police have received $11.6 million from forfeitures, while the Bernalillo County Sheriff’s Office netted $2.1 million, according to city and county documents.
That money stems from seizures in cases where officers and deputies working alongside federal agents get a portion of property seized during investigations, typically drug trafficking cases, as well as from seizing vehicles from people suspected of repeat drunken driving.
Rio Rancho recently passed a DWI seizure law that is set to take effect in July unless state seizure laws are changed, said Rio Rancho police Lt. Paul Rogers.
The BCSO was ordered to pay $3 million in damages in 2011 when a District Court judge ruled the agency was violating state laws in the way it was seizing property during traffic stops.
And Albuquerque is facing a class action lawsuit over allegations its DWI seizure program has confiscated the vehicles of “innocent owners” who owned the car but had nothing to do with the DWI.
Albuquerque police officer Tanner Tixier, a police spokesman, said the department has not asked the governor for a veto or taken an official stance on the bill. Police and city officials declined interview requests on the bill.
Colin Hunter, an Albuquerque attorney who has filed a class action lawsuit against Albuquerque for its DWI seizures, said the bill will rein in seizures in Albuquerque if signed into law.
“The city’s not going to pony up and do this if they have to give the money to the state,” he said.
The bill was approved unanimously by the House and Senate during the session that ended March 21, though it was not passed in the Senate until the session’s final day.
The governor told reporters at a news conference an hour after the Legislature adjourned that she plans to review the legislation, but did not offer any indication as to whether she will sign it.
“I’ll have to look at it,” said Martinez, who has until April 10 to act on legislation approved during the session’s final days. A spokesman for the governor declined to comment further.
Rep. Zach Cook, R-Ruidoso, the bill’s sponsor, said public awareness of the issue has increased due to several high-profile recent incidents.
“Law enforcement agencies, at least some of them, are abusing the system,” said Cook, an attorney. “When you have cases of the government seizing property without charges, people’s ears perk up.”
“Clearly, we have to be cautious when we provide the government with this kind of power and authority,” said Stratton, a Republican who served as attorney general from 1987 through 1990.
Stratton also said this year’s bill is not “anti-law enforcement” legislation, adding law enforcement groups should be adequately funded by state and local governments, and should not be reliant on seizures to help balance their budgets.