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Judge Rules Against BCSO

By Scott Sandlin
Copyright © 2010 Albuquerque Journal
Journal Staff Writer

          A state District Court judge has ordered the Bernalillo County Sheriff's Office to stop transferring seized cash to the federal government without following state procedures — a strategy that had made it easier for the BCSO to take and keep millions of dollars in seized assets.
        Second Judicial District Judge Nan Nash, ruling in a civil lawsuit challenging cash forfeitures by the BCSO and former Sheriff Darren White, said in essence that White and BCSO did an end-run around state law by using more lenient federal forfeiture procedures.
        She ruled that county law enforcement had not followed the law when it seized cash from individuals and failed to follow the New Mexico Forfeiture Act, which requires the money to be deposited in an interest-bearing account with the District Court clerk.
        Instead, BCSO seized the cash and transferred it to the federal government — eventually getting back 80 percent of it — or held it in an "evidence" account, even though it wasn't always used as evidence.
        The ruling came in a 2006 class-action lawsuit filed by attorneys Shannon and Joseph Kennedy.
        Joseph Kennedy estimates damages in the BCSO lawsuit to be as much as $3 million.
        He hailed the ruling as a "great victory for the rule of law ... that even sheriffs have to follow the law."
        "It's sad," he said, "that the court has to order law enforcement officers to obey straightforward, mandatory direction from the state Legislature. BCSO purchased helicopters, cars and crime labs on the backs of the poorest of the poor — folks who could not afford to retain an attorney and whose individual claims did not allow an attorney to work on contingency."
        The law firm filed class-action complaints against both the Albuquerque Police Department and BCSO on behalf of people whose money was taken but never deposited with the county clerk.
        The city of Albuquerque settled its lawsuit for $882,290 in 2009.
        Nash's ruling sets the stage for an already scheduled Sept. 23 hearing at which experts will offer their calculations regarding how much the county must return to the class members.
        Kennedy estimated the number of class members at 400 to 500. Most seizures, he said, were for amounts under $10,000.
        White said Tuesday that he hadn't seen the ruling but expects to sit down soon with the county legal department to discuss an appeal.
        He testified during a bench trial in June that he believed he had the option of using either state or federal law to forfeit money or property. He took the position that officers were not required to follow state law and were free to transfer the money to federal officials using federal forfeiture law.
        The money in question was taken from individuals during traffic stops, typically on I-40. In many cases, criminal charges were never filed, but individuals didn't get their money back.
        Instead, it languished in an "evidence" account even though it was not used as evidence.
        BCSO narcotics officers making the seizures were members of an interagency task force working with federal and other local law enforcement agencies on drug control, but Nash found they were not federal agents or officers.
        BCSO never attempted to comply with the New Mexico Forfeiture Act by depositing seized monies with the court clerk's office, Nash found.
        "BCSO, in conjunction with the DEA (Drug Enforcement Administration) and the FBI, adopted a system to bypass the more stringent requirements of the New Mexico Forfeiture Act in favor of the more lenient requirements of (the) federal forfeiture act. BCSO chose to follow federal law ... to avoid the higher burdens placed on them under the New Mexico Forfeiture Act."
        Carlos Quiñones, the attorney defending the county, argued in court documents that the state court lacks jurisdiction because when BCSO seized cash, it filed federal forfeiture proceedings. He also argued that no regulations were ever drafted to administer the New Mexico Forfeiture Act.
        Nash observed in her 27-page finding filed last week that the state forfeiture law directs money seized by officers to be deposited with the District Court clerk within 30 days of the seizure, and that did not occur.
        Joseph Kennedy said he expects the Court of Appeals to "uphold the intent of the Legislature and the ruling of the trial court."
        Nash's ruling does not allow individual class members to receive interest on the amount held by the county. But it orders BCSO to "cease and desist from transferring cash to the federal government without first complying with the New Mexico Forfeiture Act" unless they're directly assigned to the DEA.

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