Keller aide: Mayor has ended APD's civil asset forfeiture program

A top aide to Mayor Tim Keller said Friday that the mayor has basically ended the police department's civil asset forfeiture program by ordering that police can't seize a DWI suspect's vehicle unless there is a criminal conviction.

Deputy Chief of Staff Justine Tillman made the announcement on Facebook in response to an ABQReport story about how a federal court judge last month ruled that the city's DWI vehicle seizure program violates people's federal due process rights as well as a 2015 state law that ended civil asset forfeiture. (That story is posted below)

Under the city's DWI seizure program, police can take the vehicle of a person arrested for DWI even though that person hasn't been convicted of the crime. The 2015 state law bars government's from seizing private property unless there is a criminal conviction.

“Earlier this week, Mayor Keller changed the policy to limit ABQ’s seizure program to cases where there has been a conviction,” Tillman wrote. “In order to bring municipal law in line with state law and recent court rulings, Keller updated the policy and is calling on City Council to formally revise the ordinance. Going forward, APD is focusing its efforts on proactively combating drunk driving.”

Details and copies of whatever Keller ordered in regards to the city's forfeiture program weren't immediately available. Tillman added in another Facebook post that those details would be coming soon.

(Photo: Justine Tillman)

“The city is finalizing everything shortly - please stay tuned,” Tillman wrote on Facebook.

Keller's decision to seize vehicles only after a DWI conviction apparently came in response to a March 30 opinion in which U.S. District Court Judge James Browning said the city's ordinance violated federal due process protections and the 2015 state law which said government's can't seize a person's property unless there is a criminal conviction in the case.

“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.”

Browning wrote his opinion in the case of a lawsuit 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.

While some media outlets have reported that Browning's decision merely allowed the lawsuit against the city 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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