New Mexico Passes Law Saying Law Enforcement Can't Steal Your Property Without A Criminal Conviction

from the good-news dept

Tue, Apr 14th 2015 3:53pm — Mike Masnick

We've been talking for a while about the ridiculousness of the civil asset forfeiture system in the US, whereby law enforcement can basically steal what they want (and some cops will even admit that, to them, it's shopping for stuff they want). If you don't remember, it basically just involves police taking stuff and then insisting that it was ill-gotten goods from some sort of law breaking activity -- which would be kept by filing a civil lawsuit against the stuff itself rather than the person. There didn't need to be any criminal conviction at all. Earlier this year, Eric Holder tried to limit the DOJ's assistance of such shopping sprees by law enforcement, but police were still open to using the process to take stuff.

And, now, some states are trying to take action. Virginia lawmakers started pushing for a requirement of a criminal conviction. A similar bill in Wyoming passed out of the legislature overwhelmingly, but was vetoed by the governor who seemed to argue that all civil asset forfeiture "is right" despite plenty of evidence of abuse.

However, in New Mexico, not only did the legislature agree on a bill requiring a conviction, but now Governor Susana Martinez has signed the bill:

House Bill 560 (HB 560) makes numerous changes to the asset forfeiture process used by law enforcement agencies in New Mexico. As an attorney and career prosecutor, I understand how important it is that we ensure safeguards are in place to protect our constitutional rights. On balance, the changes made by this legislation improve the transparency and accountability of the forfeiture process and provide further protections to innocent property owners.

This is great to see and hopefully other states will follow suit -- or we can get a federal law stating that police can't just take stuff without a criminal conviction.

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Filed Under: asset forfeiture, civil asset forfeiture, criminal conviction, new mexico, police, stealing

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Paraquat (profile), 14 Apr 2015 @ 4:03pm

We could be even worse off...
The intent of this law in New Mexico sounds good, but there is a danger. Now if the cops really want to steal your stuff, they'll try like hell to get you convicted of something. Could be anything, like "resisting arrest" which is one of their favorites.

A better reform would be that the cops can't keep your stuff at all, even if you are convicted of something. In the case where a person does commit a serious crime, and let us say a boat was used (for example, to smuggle drugs), the most that should happen is that the boat gets seized, sold at auction (after conviction) and the money donated to a charity, not the cops themselves. If the cops take it, then it's stealing, and they should be prosecuted for theft.
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Anonymous Coward, 14 Apr 2015 @ 4:07pm

I wonder if those politicians who support this would be so chill if russian or iranian cops were doing it.
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J.R., 14 Apr 2015 @ 4:21pm

Great. Nice to have good news of the home front; hope the trend spreads.
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Anonymous Coward, 14 Apr 2015 @ 4:34pm

Federal Law...
Re: "Or we could just get a federal law saying the cops can't take your stuff without a criminal conviction"

Isn't that pretty much what the 4th Amendment says?
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radix (profile), 14 Apr 2015 @ 4:50pm

Re: Federal Law...
Fifth:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
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Anonymous Coward, 14 Apr 2015 @ 4:53pm

"Or we could just get a federal law saying the cops can't take your stuff without a criminal conviction"

HA! The government making a federal law where they can't just steal civil assets from anyone? Yeah, like that will happen... Oh wait, you're serious?

HAHAHAHAHAHAHAHAHAHAHA Oh god... please stop... I can't breath...
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Anonymous Anonymous Coward, 14 Apr 2015 @ 4:59pm

Re: Re: Federal Law...
The current rules were established to help fight the 'war' on drugs. I have always wondered how it has failed to obtain a rejection by the Supreme Court. That is both the 'war' and the taking of property.

Then again, the Supreme Court OK'd the taking of property for commercial use [erm, pure profit motive] under Eminent Domain. I wonder how kickbacks work at that level?
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That One Guy (profile), 14 Apr 2015 @ 5:42pm

Re: We could be even worse off...
Yeah, that is probably the biggest 'What were you thinking?!' problems with armed robbery at badge-point, that the ones doing the robbery were also the ones who benefited from it, and as a result have incentives to engage in it as much as possible.

The laws should never have allowed those making the 'seizures' to profit from them, even indirectly, and should instead have had the proceeds sent elsewhere, like education funding, road upkeep, pretty much anything not related to the police.
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JustShutUpAndObey, 14 Apr 2015 @ 5:51pm

Re: Re: Re: Federal Law...
As long as you're talking about the Supreme Court, this is the same court that has TWICE ruled that PROOF of innocence is not sufficient reason to grant a new trial or release to someone on death row.
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Daydream, 14 Apr 2015 @ 6:21pm

State law vs Federal law?
I'm not familiar with US law; is giving the police permission to seize assets via asset forfeiture proceedings a federal law, or is it a commonly recurring state law?

If it's a state law, no problem, but if it's a federal law, wouldn't that 'trump' New Mexico's decision to prohibit asset forfeiture without a conviction, via Supremacy Clause?
Therefore allowing police in New Mexico to ignore the decision of the legislature?
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mr. sim (profile), 14 Apr 2015 @ 6:35pm

the saddest part of this civil asset forfeiture system is the fact there needs to be a law telling the cops this. it should have been explicitly known you had to be convicted before the property could be seized, but then again lawyers are involved.
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Vikarti Anatra (profile), 14 Apr 2015 @ 7:17pm

Re: Re: Re: Re: Federal Law...
>As long as you're talking about the Supreme Court, this is the same court that has TWICE ruled that PROOF of innocence is not sufficient reason to grant a new trial or release to someone on death row.
Can you tell more details?
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Anonymous Coward, 14 Apr 2015 @ 7:17pm

Re: State law vs Federal law?
There are both state and federal laws regarding this, but a state can at least pass a law saying the people they are hiring to do police work cannot do this. They can't stop the FBI from doing these seizures, but it's not a violation of the Supremacy Clause for the state to tell its employees what to do.
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Anonymous Coward, 14 Apr 2015 @ 7:20pm

Re: State law vs Federal law?
... federal law, or is it a commonly recurring state law?
Both civil and criminal forfeiture proceedings take place under both federal law and also the law of various states.

... if it's a federal law, wouldn't that 'trump' New Mexico's decision...
The New Mexico legislature cannot amend or repeal acts of the United States Congress. But neither may the U.S. Congress amend or repeal acts of the New Mexico legislature. They are separate sovereigns.

... via Supremacy Clause
If a particular act of the New Mexico legislature is in conflict with a valid legislative act or scheme promulgated by the U.S. Congress, then the federal scheme overrides the operation of the state act, by, as you pointed out, virtue of the Supremacy clause.

This gets real complicated real quick, and may occur in many combinations and permutations, all subject to quibbling over exact details, twists and turns.

Therefore allowing police in New Mexico to ignore the decision of the legislature?
In the case of forfeitures, the practical effect of the federal laws, in other states, has been to allow police agencies to partner with the feds to thumb their noses at state legislatures—and to continue stealing shit.
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Anonymous Coward, 14 Apr 2015 @ 8:30pm

Re:
I find it humorous when political blow hards threaten violence in order to protect "the constitution" while at the same time rationalize why "the constitution" does not apply in this or that instance.

I think what it boils down to is, they retain their rights under their constitution while at the same time everyone else loses their rights under the constitution that they have used to wipe their collective asses.
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Padpaw (profile), 14 Apr 2015 @ 10:19pm

Now to wait for the overblown and violent response from the police unions on how this will make it harder for them to do their jobs. As well as being easier for criminals to get away with crime.

Be good to see which local politicians and officials are being bribed to support their party line against this new bill
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Bamboo Harvester (profile), 15 Apr 2015 @ 2:22am

Re: Re: Re: Federal Law...
"The current rules were established to help fight the 'war' on drugs."

It's an expansion of the Federal RICO Act, which was sold as the "only way to fight organized crime". Strip a mob boss of all his assets and he can't afford a lawyer to fight the charges was the idea. Which never made sense to me.

"Then again, the Supreme Court OK'd the taking of property for commercial use [erm, pure profit motive] under Eminent Domain. I wonder how kickbacks work at that level?"

Picture your bathroom stuffed with so many $100 bills that the windows blow out and you'll have an idea of the starting point.
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Whatever (profile), 15 Apr 2015 @ 2:34am

Re: Re: Re: Re: Federal Law...
"It's an expansion of the Federal RICO Act, which was sold as the "only way to fight organized crime". Strip a mob boss of all his assets and he can't afford a lawyer to fight the charges was the idea. Which never made sense to me."

You have to think for a second. It is incredible unfair for someone to amass a huge fortune by illegal means, and then to be able to use those ill gotten gains to fight legal action. The idea isn't to make it impossible for them to fight the legal system, it makes it only that they have to fight the legal system without a bucket load of money they made by stealing or skimming from others.

Kim Dotcom is learning this lesson in a most massive way. He may even have to skip a couple of $1000 dinners to afford legal fees.
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Anonymous Coward, 15 Apr 2015 @ 2:43am

Re: Re: Re: Re: Re: Federal Law...
It is incredible unfair for someone to amass a huge fortune by illegal means, and then to be able to use those ill gotten gains to fight legal action.

It is tyranny in its purest form to find someone guilty and to then hold a show trial to confirm the verdict, which is even worse for society that letting the guilty sometimes go free.
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That One Guy (profile), 15 Apr 2015 @ 3:19am

Re: Re: Re: Re: Re: Federal Law...
You have to think for a second. It is incredible unfair for someone to amass a huge fortune by illegal means, and then to be able to use those ill gotten gains to fight legal action.

Until they are actually found guilty, punishing them before a trial by seizing their property and/or funding is doing things decidedly backward, handing out the penalty before the verdict has even been made, and not even close to 'justice'.

Say for example you were accused of a crime, doesn't matter particularly what, just that it involved money of some sort. Would you say it would be fair for your assets to be frozen and/or taken from you, and then when you rightfully objected, pointing out that such an action makes defending yourself against the charges leveled against you nearly impossible, you were told 'Tough luck' and forced to defend yourself without your money or resources?

If that's what it takes for an innocent person not to get steamrolled by a bloodthirsty prosecutor, I think I'd accept an accused criminal being able to use his ill-gotten gains to present a decent defense, even if they were ultimately found guilty. Better that than innocent people shipped off to jail for crimes they didn't commit, simply because they weren't able to defend themselves.
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Whatever (profile), 15 Apr 2015 @ 3:49am

Re: Re: Re: Re: Re: Re: Federal Law...
The point is that the money is the product of the alleged crime. When someone robs a bank, they criminal can't keep the money to pay for a lawyer. Why should it be different if the money was obtained by selling drugs, or selling illegal weapons?

Remember, by your logic, the bank robbery is only alleged until he is found guilty in a court of law. By that standard, he should be allowed to keep the gun he used, the money he obtained, and the car he stole to make the get away, as all of it hasn't been proven in a court of law. He should be allowed to drive that car to court, carry the weapon, and use the money to pay for his defense.
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Uriel-238 (profile), 15 Apr 2015 @ 3:51am

Re: Re: We could be even worse off...
You know, the Holy Inquisition and the Salem Witch Trials had this in common: the prosecutors could keep the assets they seized.

I guess we really don't learn from history.
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me, 15 Apr 2015 @ 3:52am

Re: We could be even worse off...
We need a national law preventing being arrested for resisting if there was never any valid grounds for arrest.
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AJ, 15 Apr 2015 @ 4:09am

Re: Re: Re: Re: Re: Re: Re: Federal Law...
"Why should it be different if the money was obtained by selling drugs, or selling illegal weapons?"

Because when you steal someone's money, you are taking it from them by force. In the case of drugs or weapons, someone is giving you the money, however illegal it may be.

If the robber gets caught, then they take the money, the car he was in, the gun etc etc... they don't drive to his house, take everything he owns, and toss his ass on the street until his trial do they? Because it sounds like that's exactly what the law is meant to do... sounds like we went from one extreme to the other.

In the case of selling drugs, or illegal weapons, how exactly do you separate what was purchased with legal money and what was purchased with illegal money? If you catch the guy with a trunk full of money and illegal guns, I get that, take the whole thing... but that doesn't mean we should be able to drive to his house and clean him out, or clean out his bank accounts without some kind of actual conviction.... sounds like were doing the very thing were trying to convict the criminal of doing, stealing.
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Anonymous Coward, 15 Apr 2015 @ 5:21am

Re: Re: Re: Re: Re: Federal Law...
"It is incredible unfair for someone to amass a huge fortune by illegal means, and then to be able to use those ill gotten gains to fight legal action."

Yes, it is unfortunate that the banksters have been given carte blanc, but that does not mean everyone else will simply give up their rights so that the banksters can keep theirs - nfw.
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Mason Wheeler (profile), 15 Apr 2015 @ 7:26am

Re: Re: Re: We could be even worse off...
The Holy Inquisition.

You wouldn't happen to be referring to the Spanish version of same, would you? You know, the guys who pioneered the concept of the presumption of innocence ("innocent until proven guilty") and the defendant's right of access to legal council? The people who effectively put an end to witch trials in Spain a century before the rest of Europe, by the simple expedient of requiring proof of the accused working black magic in order to convict? The guys who were one of the biggest civilizing forces of their day, and for that get remembered today as villains?

Apparently nobody respects the Spanish Inquisition.
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Anonymous Coward, 15 Apr 2015 @ 7:28am

Re: We could be even worse off...
The cops don't get to keep your stuff (not directly anyway):

"Among other things, the New Mexico bill requires a criminal conviction for forfeiture actions, bolsters the “innocent owner” defense by requiring that the owner know that his/her property was being used illegally, requires that all forfeiture proceeds be deposited into the general fund rather than into the seizing agencies, and limits the ability of state and local law enforcement agencies to circumvent state law by utilizing the federal equitable sharing program."
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Anonymous Coward, 15 Apr 2015 @ 8:16am

Re: Re: Re: Re: Re: Re: Re: Federal Law...
The point is that the money is the product of the alleged crime.

Emphasis is mine - until it's proven, it is not.

By your logic, because he allegedly robbed a bank, we should be able to take ALL of his possessions, until well, whenever.

Would you feel the same way about it if you were pulled over and arrested for allegedly being a drug trafficker, and all of your assets were seized in the meantime as a result?

Funny how people love to assume that just because someone's charged with a crime, they're guilty until proven innocent.
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Anonymous Coward, 15 Apr 2015 @ 8:32am

Re: Re: Re: Re: Re: Re: Re: Federal Law...
You know, after thinking about it some more, maybe it is a good idea.

What if a corporation was accused of wrongdoing...say, being negligent in leaking thousands of gallons of oil into the Gulf of Mexico, as a result of an alleged accident?

Should we seize ALL of their assets in the meantime, which may have been earned through negligent, illegal means, thus prohibiting the corporation from mounting a defense as a result of their negligence?

If they can prove that the assets were not obtained illegally, you know, by foregoing a few $1000 dinners, and using whatever they have left to hire an attorney, then maybe they can have them back. Maybe.
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Anonymous Coward, 15 Apr 2015 @ 8:49am

Re:
No the saddest part is that there ALREADY IS A FEDERAL LAW that tells them this but it has been summarily ignored. It's called the 4th amendment of the Constitution.

What do you think the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" could possibly mean? It pretty plainly is supposed to mean that they can't take your stuff much less keep it.
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Anonymous Coward, 15 Apr 2015 @ 8:59am

Re: Re: Re: Re: Federal Law...
It's not exactly "of all his assets and he can't afford a lawyer to fight the charges" but rather the idea was that he should not be allowed to use the profits from illegal activity to fund his defense in the charge of engaging in said activity. But again that was just the original idea. In practical means it works out as a legal means for law enforcement to take what they want from whomever they want.
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Anonymous Coward, 15 Apr 2015 @ 9:01am

Re: We could be even worse off...
"..donate to charity.."

that would be the best route!
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Anonymous Coward, 15 Apr 2015 @ 11:32am

Re: Re: Re: Re: Re: Re: Federal Law...
The bankers would simply remind the government that forfeiture is THEIR job.
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Anonymous Coward, 15 Apr 2015 @ 12:08pm

Re: Re: We could be even worse off...
That's not good enough. Depositing into a general fund is basically money laundering. Once it's deposited into the general fund there is no accountability for what money came from where and went to where. There needs to be provisions that state that it HAS to go somewhere other than to the police department, court system, etc. The same thing needs to be done with ALL court ordered fines such as traffic tickets.
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JMT (profile), 15 Apr 2015 @ 9:47pm

Re: Re: Re: Re: Re: Federal Law...
"The idea isn't to make it impossible for them to fight the legal system, it makes it only that they have to fight the legal system without a bucket load of money they made by stealing or skimming from others.

Kim Dotcom is learning this lesson in a most massive way."

The first line is disproved by the second. Dotcom is learning that the DOJ will do anything in its power to make it impossible for him to fight the legal system. They have tried to confiscate all his wealth, despite the fact that will will take a long and expensive court process to determine what if any proportion of the money earned from MegaUpload can be proven beyond reasonable doubt to be from infringement.
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Pragmatic, 16 Apr 2015 @ 5:50am

Re: Re: Re: Re: We could be even worse off...
What, THIS Inquisition? http://history.howstuffworks.com/historical-figures/spanish-inquisition.htm
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Uriel-238 (profile), 16 Apr 2015 @ 1:08pm

The Holy Inquisition aka The Medieval Inquisition
The Spanish Inquisition took place during the Renaissance, founded in 1478.

The Holy Inquisition started circa 1230, and features Ad extirpanda the papal bull which authorized torture to extract confessions from heretics. It also would later feature that amazing discovery that you could torture confessions from witnesses to give up names, and by this marvelous exploit, get to torture everyone in a town.

And the church would seize the property of those who confessed, and give the state a share for its part. Gasoline on the fire.
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Uriel-238 (profile), 16 Apr 2015 @ 1:15pm

Re: The Holy Inquisition aka The Medieval Inquisition
Minor trivial correction.

The Holy Inquisition itself was started with the bull Ad abolendam issued November 4, 1184. We didn't get to the torture until Ad extirpanda, May 15, 1252.
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Uriel-238 (profile), 16 Apr 2015 @ 1:22pm

Oh, and...
The Office of the Holy Inquisition is now the Congregation for the Doctrine of the Faith or CDF who recently went after the Leadership Conference of Women Religious for daring to think that the War on Poverty was a higher priority than bashing gays and suppressing contraception and abortion access.

The more you know is half the battle.
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Anonymous Coward, 22 Apr 2015 @ 11:50pm

Re: Re: Re: Re: Re: Federal Law...
Oh, look. It's Mr. "Cops can't do their job if they're not allowed to throw a flashbang at a baby where they think a criminal just might be hiding regardless of the accuracy of their information" busy at work again.
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