‘Policing for Profit’ Lawsuit Survives in Albuquerque

ALBUQUERQUE (CN) — A federal judge refused Albuquerque’s request to dismiss a lawsuit that claims the city “polices for profit” by seizing vehicles for civil offenses.

The civil forfeiture program has been just one aspect of unpopular police actions in Albuquerque. The program drew attention in 2014 through a video of the Santa Fe Vehicle Forfeiture Conference, in which attorneys discussed the profitability of the practice.

Public outrage forced the Legislature to pass a Forfeiture Reform Law, House Bill 560, which took effect in July 2015. It bans most forms of civil forfeiture in New Mexico.

But Albuquerque continued doing it and had plans to expand, even after state Senators Lisa Torraco and Daniel Ivey-Soto sued the city in November 2015, after the city approved $2.5 million in new bonds to buy a parking lot to hold the cars the city expects to seize.

Arlene Harjo sued the city in August 2016 because Albuquerque seized her car after her son Tino borrowed it and drove under the influence.

Harjo said she tried to get her car back for months, but the city demanded that she “prove her own innocence … treated her like a criminal,” and made her pay for an administrative hearing at which she was “confronted by a supposedly neutral hearing officer who acted as an advocate for the city — advancing theories not based on evidence in the record as to why Arlene should be punished for Tino’s actions.”

Harjo calls the city’s forfeiture policies unconstitutional, as the process for reclaiming a seized vehicle places the burden of proof on vehicle owners to prove their innocence. And, she says, the policy violates the Fourteenth Amendment by creating an unlawful profit incentive for the city and its employees, given that Albuquerque writes into its budget ahead of time the money it expects to make from selling seized cars.

The lawsuit states: “The city’s 2016 budget, for instance, anticipates that $512,000 will be transferred from the fund that received vehicle forfeiture revenues to pay the salaries of ‘two paralegals, two attorneys, two DWI seizure assistants and one DWI seizure coordinator.’”

The city sought dismissal of Harjo’s claims in June last year, claiming the New Mexico Forfeiture Act does not preempt Albuquerque’s forfeiture ordinance, which is premised on nuisance regulation. It called Harjo’s Fourteenth Amendment claims invalid because self-funding forfeiture programs are common in the United States and “by their very nature, provide a means of revenue to municipalities … to finance their costs of operation.”

To violate the Fourteenth Amendment, the city argued, would require that “city officials … directly benefited financially from vehicle forfeitures,” but Harjo’s suit lacks that element, such as an allegation that salaries are dependent on “the number of vehicles seized or successful prosecutions.”

U.S. District Judge James O. Browning on Friday dismissed Harjo’s unlawful profit claim, to the extent that it relies on the theory that because the vehicle forfeiture program funds itself it violates due process.

He also dismissed Harjo’s procedural due process claim to the extent it relies on the theory that the fees imposed, alone, create a procedural due process violation.

He dismissed state law claims without prejudice, declining to exercise jurisdiction because New Mexico appellate courts have yet to consider the conflicts between the state’s and city’s forfeiture laws.

But Browning did not dismiss procedural due process claims regarding placing the burden of proving innocence on the vehicle owner, nor the unlawful profit incentives claims stemming from the program’s use of funds it raises to finance salaries and costs.

The lawsuit will continue based on those claims.

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