ALBUQUERQUE, N.M. — A bipartisan pair of state senators filed a lawsuit against the city of Albuquerque that denounces the city’s vehicle seizure program for being in conflict with recent changes to state forfeiture laws and calls for the program to be reformed.
Sens. Lisa Torraco, R-Albuquerque, and Daniel Ivey-Soto, D-Albuquerque, announced the lawsuit during a news conference outside the state district courthouse on Wednesday morning. They are seeking an injunction to stop the city from taking ownership of someone’s vehicle without first convicting the vehicle owner of drunken driving or other crimes.
Attorneys for the Institute of Justice, a U.S. libertarian public interest law firm, filed the lawsuit on behalf of the senators.
Torraco and Ivey-Soto said they are not against criminal forfeitures.
“It’s all about the conviction,” Torraco said. “The ramifications of taking property from people who are presumed innocent is tearing families apart.”
Torraco and Ivey-Soto said state lawmakers intended to stop programs like the one in Albuquerque when they unanimously voted to end civil asset forfeiture statewide.
But City Attorney Jessica Hernandez said the city’s seizure program relies on a specific city ordinance, not a state law, to take vehicles. She also said the city was expecting a lawsuit to clarify if the city’s program is affected by recent changes to state forfeiture laws.
“Unless the Legislature or a court says very clearly that we’re not allowed to do it, then were going to do everything we can to protect our city from repeat DWI offenders,” Hernandez said. “As long as we are legally able to do this, we will maintain the program, because we think it’s a way to keep our community safe and is legally allowed.”
Since 2010, Albuquerque has seized more than 8,000 vehicles and earned more than $8 million from the practice. Part of that revenue goes to pay the salaries of the attorneys and other city personnel involved in the seizure program and some of the money goes to other law enforcement expenses.
The lawsuit says that Albuquerque sets vehicle seizure performance measures in its operating budget. For the current fiscal year, the city is aiming to conduct 1,200 vehicle seizure hearings, release 250 vehicles under agreements and sell 625 vehicles at auction, according to the suit.
The vehicles are taken under a city ordinance that allows police to confiscate the vehicle from anyone arrested on suspicion of their second or subsequent DWI and several other crimes.
This year, the Legislature passed a law that was signed by the governor that abolished civil asset forfeiture but still allows criminal forfeiture. That means that police need to obtain a conviction before seizing property. The change to the state law also made it so revenue from criminal forfeitures went to the state general fund, not local governments.
But despite those changes, Albuquerque police continue seizures when the driver of the vehicle is arrested, and often the city takes ownership of the vehicle or imposes fines, fees and other restrictions against the owner before anyone is convicted. Additionally, the City Council recently approved a measure to build a new complex to store the seized vehicles, according to the lawsuit.
“The last time I checked, Albuquerque is in the state of New Mexico,” Ivey-Soto said. Albuquerque “can still take the instrument used in a crime. But only if the property owner is convicted.”
Albuquerque’s seizure program also allows police to take control of vehicles even if the owner of the vehicle isn’t driving the car at the time someone else is arrested. The city’s hearing officers have estimated that happens in about half of the cases.
Hernandez said there are provisions in the ordinance that protect innocent owners. Those protections do require the vehicle owners to provide some evidence that they couldn’t have “reasonably anticipated” the person who was driving their vehicle would break the law and get it seized.