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Federal judge: ABQ vehicle seizure program violates due process rights

A federal court judge has found that the city of Albuquerque's DWI vehicle seizure ordinance violates people's rights to due process and that it also violates the state's civil asset forfeiture law which requires a conviction before police can seize a person's property.

The city has been claiming for several years that it vehicle seizure program, which allows the city to seize a car without a criminal conviction, and which requires a person whose vehicle has been seized to prove their innocence, doesn't violate a 2015 state law that bars property seizures by the government before a criminal conviction.

But U.S. District Court Judge James Browning found otherwise in a March 31 ruling in which he refused to totally grant the city's motion to dismiss a lawsuit brought by a woman whose car was seized by the city of Albuquerque after her son was arrested for driving it while intoxicated can move forward.

“The 2015 Amendment [to the state forfeiture law] added that purpose. [Of needing a criminal conviction before governments can seize property.] This purpose limiting forfeitures to criminal actions is expressly at odds with the City of Albuquerque’s civil forfeiture ordinance,” Browning's opinion said. “The Court concludes that the 2015 Amendments new purpose is strong evidence of the New Mexico Legislature’s intent to preclude municipalities from creating a civil forfeiture scheme.

“Although the Court concludes that the NMFA [New Mexico Forfeiture Act] preempts the City of Albuquerque’s forfeiture ordinance, the Court also concludes that this issue is novel as it is both new and notable.”

While some media outlets have reported that Browning's decision merely allowed the lawsuit by the plaintiff, Arlene Harjo, to more forward, it actually did much more; it ripped the city's program in several ways by saying it violated Harjo's due process rights in two ways: by placing the burden of innocence of a vehicle's owner, and by the fact that the forfeiture program is funded by the revenues it generates and that program employees have sometimes used seized vehicles for personal purposes.

“The Court concludes that the Forfeiture Ordinance’s innocent owner defense violates due process, because innocent owners have a great interest in their vehicle, and there is a significant risk of erroneous deprivation flowing from placing the burden of proof on innocent owners,” Browning's opinion said.

The opinion added that, “Because it is plausible that the program’s dependence on forfeiture revenues threatens officials’ salaries, the vehicle forfeiture program violates due process. A profit incentive exists when officials’ level of enforcement can affect how much they are paid.”

Robert Johnson, an attorney with the Institute for Justice, which is representing Harjo, said Browning's opinion was encouraging. Harjo has a motion pending which asks Browning to rule in her favor.

“There is language that is extremely encouraging and that ought to cause officials in the city of Albuquerque to sit up and take note,” Johnson said. “They should be concerned that they are violating people's constitutional rights, and their rights under state law as well.”

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