New Mexico Legislators Sue City For Refusing To Follow New Asset Forfeiture Law

from the we-thought-it-was-just-a-suggestion dept

Tue, Dec 8th 2015 3:45pm — Tim Cushing

Earlier this year, the state of New Mexico passed one of the most solid pieces of asset forfeiture reform legislation in the country. All it asked for was what most people would consider to be common sense: if the government is going to seize assets, the least it could do in return is tie the seizure to a conviction.

Now, the state is finding out that bad habits are hard to break. CJ Ciaramella reports that the government is going after another part of the government for its refusal to stop taking stuff without securing a conviction.

Two New Mexico state senators are suing Albuquerque after the city has refused to stop seizing residents’ cars, despite a law passed earlier this year ending the practice of civil asset forfeiture.

In a lawsuit filed Wednesday, New Mexico state senators Lisa Torraco and Daniel Ivey-Soto said Albuquerque is defying the new law and “has continued to take property using civil forfeiture without requiring that anyone—much less the property owner—be convicted of a crime.”

These would be the two senators who pushed for the much-needed reform. They managed to get the law passed, but Albuquerque (along with other cities in the state) haven't shown much interest in altering their tactics. The only incentive the new law has on its side is the threat of legal action or legislative pressure. The old incentives -- hundreds of thousands of dollars -- are still motivating local law enforcement.

Albuquerque has a particularly aggressive program to seize vehicles from drivers suspected of DWI. According to the Albuquerque Journal, the city has seized 8,369 vehicles and collected more than $8.3 million in forfeiture revenues since 2010.

The city's attorney argues this newly-illegal activity is still legal, because drunk driving.

“Our ordinance is a narrowly-tailored nuisance abatement law to protect the public from dangerous, repeat DWI offenders and the vehicles they use committing DWI offenses, placing innocent citizens’ lives and property at risk,” city attorney Jessica Hernandez said in a statement to BuzzFeed News. “The ordinance provides defenses to forfeiture to protect innocent owners and has been upheld by the courts.”

Yes, all asset forfeiture statutes and ordinances theoretically provide "defenses to forfeiture" and have been "upheld by courts." That doesn't make them right, especially when a law directly governing the city's actions has been passed and forbids the very thing it continues to do.

And as for the DWI excuse, the city itself admits that half the vehicles it seizes do not belong to the person driving them. So, all it's really doing is taking cars because it can, not because it has any interest in preventing drunk drivers from driving. Then it lays the burden of proof -- along with the time and expense of fighting these seizures -- on the people whose vehicles have been taken (often for the actions of someone else) and calls it a reasonable avenue of "defense to forfeiture."

Once vehicles are seized, it generally takes $850 to liberate them. Most are auctioned. This money then becomes part of a cash-heavy feedback loop by going directly to the prosecutors and police departments who run the seizure program.

Stacking the deck further is the fact that the city counts its seizures before they're seized as part of its budgetary plans.

According to Wednesday’s lawsuit, Albuquerque forecasts how many vehicles it will not only seize but sell at auction. The city’s 2016 budget estimates it will have 1,200 vehicle seizure hearings, release 350 vehicles under agreements with the property owners, immobilize 600 vehicles, and to sell 625 vehicles at auction.

When government agencies have predetermined the amount of vehicles they will need to seize to hit budget projections, they will do everything in their power -- including, apparently, ignoring new laws forbidding this sort of thing -- to ensure the number of vehicles they seize is the number of vehicles they planned to seize. The incentives could not be more perverted and yet, government officials claim the system will somehow result in only the vehicles of the truly guilty being taken and sold to pay for more vehicles being taken and sold.

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Filed Under: albuquerque, asset forfeiture, daniel ivey-soto, lawsuit, lisa toracco, new mexico, police

48 Comments

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REM(RND) (profile), 8 Dec 2015 @ 4:10pm

Who would have thought that the movie Moving Violations would turn out to be a true story.

Now you're all looking it up on IMDB.

Now you're all looking at Youtube.

Now you're all cursing me out for making you see that mess of a film (some of you it's remembering it).
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Anonymous Coward, 8 Dec 2015 @ 4:11pm

Simple test...
If it's really all about safety, then you won't mind forwarding all proceeds to an organization like MADD or a victims compensation fund managed by an independent third party.
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Quiet Lurcker, 8 Dec 2015 @ 4:11pm

Complications
So if I'm in Albuquerque and some cop seizes my car without a guilty verdict, then under this new law can I invoke the right of citizens arrest and take the cop into custody? Vehicle theft is a felony, after all.
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Anonymous Coward, 8 Dec 2015 @ 4:23pm

Re: Complications
Yes... but be very careful how you do it, or you'll end up with the cop under citizen's arrest, and he'll still have a plethora of charges to throw at you for impeding a police officer etc., AND he'll have a sympathetic court.

It will all come out on your side after a multi-year prolonged court battle, costing you hundreds of thousands of dollars. The officer will get a reprimand for felonious activity, or might even have to move to another police force.
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John85851 (profile), 8 Dec 2015 @ 4:27pm

Share the proceeds
I know the state legislators tried to outlaw the practice, but why didn't they add an amendment that tells cities that they have to share the proceeds with the state.
Okay, it's still wrong and illegal for the cities to do this, but how else are they going to enforce the new law?
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sehlat (profile), 8 Dec 2015 @ 4:34pm

There's a simple resolution available to the state.
Attach a rider to the law that city government assets can be seized by the state government for failure to obey the law, no conviction required. The city's own arguments can then work against them, since making the citizens safe from the city can justify the seizure, just like drunk driving.
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Anonymous Coward, 8 Dec 2015 @ 4:52pm

Re: Complications
sounds like their kopmobile should be seized, too, you know, just to be safe...
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lars626 (profile), 8 Dec 2015 @ 4:53pm

Grand theft
Taking a vehicle you have no legal right to take is grand theft. Do you prosecute the police officer, his chief, or the city council? Or all of them?
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Anonymous Coward, 8 Dec 2015 @ 5:19pm

Re: Grand theft
Actually at this point the DOJ should be going after them for RICO violations. They are clearly benefiting from these thefts and the fact that they published their plans is going to be used against them. All of their property including pensions will be assumed to be ill gotten gains and will be confiscated pending trial. Hopefully they ignore their new rules and go ahead and civil forfeit them all just this last time, you know for the kids.
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Whatever (profile), 8 Dec 2015 @ 5:23pm

The problem here is that the city's approach isn't wrong at all. You need to think it through to understand properly.

If the police arrest someone for drunk driving, should you allow the drunk to continue on their way in the car? The answer of course is no. Operating a motor vehicle while drunk is against the public interest. At that point, the vehicle is impounded. It's entirely normal. It doesn't matter who owns the car, it matters that it was being used illegal to do something that clearly endangers the public.

The fee to recover the car are not unreasonable. They are high, but they represent the costs related to operating the tow truck, of securing the vehicle for the period of time, and the process of returning it in a legal manner. I do also believe that there is a deterrent factor for owners to not lend their cars to drunks.

As for the "forecasting", it's a pretty normal part of any city budget exercise. Based on their past experience, this is what they expect and what they put in their budget. It isn't setting a goal or setting some soft of "you must get these many cars", rather it's a reflection of their past experience and their projections for the year. Otherwise, their budget would be flawed. Taking it as a mandate or an order is to pretty much take it out of context and entirely miss the point of a budget exercise. Should they also remove income from traffic tickets in their budget or expected losses to bad debt because that would be creating a mandate for those things?

If the state really wanted to make a difference, they would pass a law that said any monies from vehicle seizures had to be given to charity or forwarded to the state for use in charitable work - or perhaps rehab facilities. My guess is that the same number of cars would be seized, because people don't stop driving drunk just because the fines and fees go somewhere else.
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Emma Goldman was here, 8 Dec 2015 @ 5:28pm

The state is a gang
A really big gang, a big well armed gang, cops are murderers and thieves, they have never been anything but. Thieves, liers and murderers are who gets invovlved in the state.. Sociopaths... period.
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Anonymous Coward, 8 Dec 2015 @ 5:46pm

Re: Re: Complications
That is if he isn't shot to death first. He kind of looks like he has a gun.
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jupiterkansas (profile), 8 Dec 2015 @ 6:23pm

Re:
I loved Moving Violations.
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That Anonymous Coward (profile), 8 Dec 2015 @ 7:14pm

So if they are operating in violation of the law, can't the state use asset forfeiture to seize property from the wrong-doers and force them to fight to have it returned?
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Quiet Lurcker, 8 Dec 2015 @ 7:35pm

Re: Re: Grand theft
If memory serves, I believe at least a part of RICO is a private right of action - meaning any Joe Citizen can enforce at least that part. If memory further serves, I believe you'll discover that the portion that citizens can enforce involves treble damages.

Assuming I'm remembering correctly, I could see some Joe Schmoe having his car - uh - seized by some cop and he goes into court and sues for the loss of the car, the money spent getting it back, the time/wages/financial benefits lost owing to not having the car, and courts costs, and the harm to his reputation, all at triple the going rate. Tack on fees, fines and interest, and our putative Mr. Schmoe could be coming into a pretty fair chunk of change courtesy of the taxpayers of Albuquerque.
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Anonymous Coward, 8 Dec 2015 @ 8:28pm

Re:
You make some good points, but the main issue here is: The city's law became illegal when the state passed a law against it. Unless there's something in the state constitution that says otherwise, a state pretty much has absolute authority over its cities.

The city cannot continue to enforce a law that has been preempted by the state, no matter how reasonable it was before.

On a secondary note, it's not just a matter of "fees to return the car". The car is not just in the temporary care of the city waiting for the owner to take it back. The city considers it to be seized. The owner has to make a "settlement" with the city to get it back, which the city is under no obligation to offer.
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Coyne Tibbets (profile), 8 Dec 2015 @ 8:34pm

Spineless
Some great ideas here. Unfortunately, it seems there isn't a legislature anywhere in the western hemisphere that has the spine to reign in their police states.
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Phile A. Report, 8 Dec 2015 @ 8:42pm

Crime Wave
the city has seized 8,369 vehicles

That's a lot of car jackin's!
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Anonymous Coward, 8 Dec 2015 @ 9:00pm

impoundment fees, another cash cow
Another problem is that the fees charged for towing and storing the car can be far in excesss of the market prices for those services (and don't even bother showing your AAA card to the tow truck driver hoping they might offer discounts on police-directed towing). Towing companies typically have a contract with the city, often exclusive, which they pay dearly for, in return for being allowed to charge high towing fees. So it's basically a kind of kickback. Car impoundment lots are usually owned by the city, and it's another cash cow.

Private car storage lots around here charge $50 per month to store a car in a secure fenced area (or $100/month for a locked private garage) but city impoundment lots can charge that much or more per day.

So by the time you prove your innocence and finally get your car back, you might owe the city far more in storage costs than your car is even worth.
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JoeCool (profile), 8 Dec 2015 @ 9:16pm

Re: Re:
Me too. I grew up on all those movies. They seem a little silly now that I'm older and more refined, but I still love them.
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JoeCool (profile), 8 Dec 2015 @ 9:19pm

Re: Re: Re: Complications
Albuquerque is just the place to do it, too. The police have been investigated and chastised by the DOJ several times for their "shoot first and don't bother asking questions later" policy. If it weren't for Chicago, Albuquerque would look even worse.
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Anonymous Coward, 8 Dec 2015 @ 9:49pm

Is there no option to fire and or charge these government officials breaking the laws. If the only legal recourse is to sue them for taxpayer dollars for committing criminal acts against the public then something is seriously broken
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Anonymous Coward, 8 Dec 2015 @ 9:52pm

Re: Complications
You will end up in a coffin if you try and arrest a criminal cop.
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Justme, 8 Dec 2015 @ 11:47pm

Par for the coarse. . .
Why would they see this as a problem... at a time when law enforcement is bending, braking, or simple doing their own re-interpretation of our laws.

Your have,

Wiretaps without a warrant using stingrays and parallel construction when they find something they want to pursue.

Entrapment, where the entire crime was imagined, funded, and pushed forward by law enforcement just to arrest some easily coerced idiot.

President's single handedly creating secret laws, when most of us believed their authority didn't include the power to create laws, let alone secret laws, and that the constitution specifically tasked congress with making laws.

They really seem to have lost sight of both the spirit and the letter of the law, in there self-righteous zeal for protecting the homeland!!
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Anonymous Coward, 9 Dec 2015 @ 1:34am

Re:
One problem with your reasoning:
Asset Seizure != Impounding.
Therefore you are justifying asset seizure by claiming impoundment is reasonable, and therefore justifying authoritarian action by claiming it is something else.
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Anonymous Coward, 9 Dec 2015 @ 1:58am

Re: Re:
You'll notice that Whatever will always defer to "the law is the law, so if you don't like it, get it changed, and if you break it you deserve every consequence that follows" - unless it's the government itself, the police, or "IP-intensive" industries.
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Anonymous Coward, 9 Dec 2015 @ 2:50am

I hate to be the one to say this but these lawmakers don't have standing to sue unless they have been directly harmed by the action. It's not up to lawmakers to sue the city, that is solely the discretion of private citizens, and if needed, the district attorney's office. It's also NOT a civil matter, it's a criminal one. Talk about a bunch of boob lawmakers.
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Klaus, 9 Dec 2015 @ 2:50am

Re: Spineless
You've heard the joke...?

Heaven:
The police are British
The cooks are French
The engineers are German
The administrators are Swiss
The lovers are Italian

Hell:
The police are German
The cooks are British
The engineers are Italian
The administrators are French
The lovers are Swiss

British police are on the whole a reasonable lot. They don't routinely tote guns like the US police, are well trained, and have to put up with endlessly poor management and government directives. That said, there are plenty of scandals to choose from. My personal favourite is 'Plebgate'. https://en.wikipedia.org/wiki/Plebgate
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David, 9 Dec 2015 @ 3:42am

Re: Re: Spineless
That does not make all that much sense. German police is not comparable to that of 2nd and 3rd Reich. The version of the joke I know makes do without the Swiss, is identical in the first half, and has German lovers and French police in the second.

Particularly in the police department, that's quite more accurate.
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Anonymous Coward, 9 Dec 2015 @ 4:56am

Re: Complications
This would be a bad idea. Albuquerque PD also has the highest homicide by cop rate in the country.
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Anonymous Coward, 9 Dec 2015 @ 5:10am

Re: Re: Complications
Their record of killing people that might interfere in their scheme is again a reason why RICO is exactly the right thing to charge them with. This will affect literally tens of thousands of people once the lawyers and guards are all accounted for that have been benefiting directly from these illegal acts. I wouldn't be surprised to see commercials running asking for people affected to contact class action lawyers within the next few days. This is going to be such a slam dunk for those prosecuting, I'm sure it will become a movie as well.
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TDR, 9 Dec 2015 @ 6:10am

No wonder Bugs Bunny keeps missing that left turn at Albuquerque...
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Anonymous Coward, 9 Dec 2015 @ 6:46am

Re: Simple test...
MADD is a shitshow.
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Anonymous Coward, 9 Dec 2015 @ 7:24am

Re: Re:
Living in Albuquerque, I've heard some of the local news talking about this issue. You're right, if you read the law as written, it basically says no law enforcement agency in the state of New Mexico can use asset forfeiture unless its under a very narrow set of guidelines. Albuquerque's lawyers are arguing that the law instead says no law enforcement agency OF New Mexico, i.e. the state troopers and county police. It's a hilariously wrong interpretation and they'll probably have their asses handed to them (after a few years of legal wrangling tying up courts that could be used for better purposes), but that's their interpretation.
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Anonymous Coward, 9 Dec 2015 @ 7:25am

Re:
I hate to be the one to say this but these lawmakers don't have standing to sue unless they have been directly harmed by the action.
That may or may not be true, depending on how the civil asset forfeiture reform law was written. The legislature, by way of the laws it passes, sets which courts have jurisdiction over a given type of dispute and sets which parties have standing to bring an action. In most cases, standing is restricted to injured parties because to do otherwise would swamp the court every time a sufficiently unpopular event happened. However, if the legislators who wrote this law planned ahead, they could easily have included a clause that "Sitting legislators have standing to sue non-compliant cities, without regard to whether the plaintiff has been personally harmed, and such suits may seek X as remedies." If X is sufficiently powerful, such as "permanent injunction against future conduct, and non-complying city officers are liable for all costs associated with the action," such a suit could be easily worthwhile.
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nasch (profile), 9 Dec 2015 @ 7:39am

Re: Re: Re:
What's strange is the law was changed, and he's still defending the old law. So apparently it's not the law he's so fond of, but authoritarianism.
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Anonymous Coward, 9 Dec 2015 @ 7:44am

Re: Re: Re: Re:
The baby banger defending authoritarianism? I'm shocked, I tell you. Shocked!
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Mason Wheeler (profile), 9 Dec 2015 @ 8:26am

Re:
The fee to recover the car are not unreasonable. They are high, but they represent the costs related to operating the tow truck, of securing the vehicle for the period of time, and the process of returning it in a legal manner.

A guy I used to know got his car impounded once. He was pulled over for speeding and the officer discovered that he had a perfectly valid driver's license... from out of state. (Apparently that's enough to impound your car in some states.)

Due to obnoxious circumstances beyond his control, it was a week before he was able to get it out of the impound. It cost about $500, and the bulk of that was the cost of holding it there for a week. So $850 seems completely unreasonable and out of line. (And that's if this were actually an impound; as others have pointed out, there's a big difference between that and asset seizure.)
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Anonymous Coward, 9 Dec 2015 @ 4:23pm

5th Admendment
Not being a scholar.... How do get adjudicated from the 5th?

"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 offense 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, 9 Dec 2015 @ 4:40pm

Re: Re:
Ah, but as Whatever would tell you, the law is the law is the law! Unless the government, the police or the copyright industry decides it's stupid, then they're fully permitted to break it any way they so choose. Not the public, though, they're unqualified serfs.
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JoeCool (profile), 9 Dec 2015 @ 6:17pm

Re: Re: Re: Spineless
The most common form of this joke has only three lines:

Heaven:
The police are British
The cooks are French
The engineers are German

Hell:
The police are German
The cooks are British
The engineers are French

The other two were added later to pad out the joke and make fun of a couple more countries.

And German police are much more harsh than either of the other two countries. It makes perfect sense, even ignoring that Nazis no longer (supposedly) exist in Germany. Remember that the war crimes trials only put the leaders away. All the remaining infrastructure (like police) remained the same.
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wshuff (profile), 10 Dec 2015 @ 6:27am

I wonder how many cars they'll have to seize to cover the defense?
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Bergman (profile), 11 Dec 2015 @ 6:34am

Re: Re: Complications
So you have a friend standing by with a camera to record the arrest, and a very good friend a little further away with a scoped rifle.

The cop commits a felony on camera, you arrest him on camera, he draws his gun to shoot you on camera and drops sans head courtesy of Mr Scoped Rifle, also on camera.

Completely legal, and with evidence to prove it.
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Bergman (profile), 11 Dec 2015 @ 6:35am

Re: There's a simple resolution available to the state.
Or better yet, amend the civil asset forfeiture law to allow private citizens to sue city buildings (not the agency or personnel, the BUILDING) in state court if the city does not comply with state law.
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nasch (profile), 11 Dec 2015 @ 7:09am

Re: Re: Re: Complications
Completely legal, and with evidence to prove it.

Are you aware of any cases in which someone knowingly killed a police officer in the performance of his duty, survived, and successfully argued self defense?
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Coyne Tibbets (profile), 18 Dec 2015 @ 12:12am

Re:
Not even one. One or the other district attorney's office will be picking up the tab for each end.

That's right! Your taxes at work!
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Anonymous Coward, 21 Dec 2015 @ 9:24pm

Re: Complications
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luuko, 21 Dec 2015 @ 9:25pm

Re: Complications
What makes you think they like citizen arrest laws since law enforcement over therey seem to cherry pick which laws to follow.
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