Federal Judge Calls City's Asset Forfeiture Program Unconstitutional

from the which-pretty-much-means-all-civil-asset-forfeiture-programs-are-unconstitutional dept

Fri, Aug 10th 2018 12:02pm — Tim Cushing

In 2015, the state of New Mexico overhauled its asset forfeiture program. The reform bill all but eliminated civil asset forfeiture by creating a conviction requirement. This eliminated roadside shopping trips by New Mexico law enforcement in which "perps" were free to go, so long as they left everything else (cash, vehicles) behind.

Despite the passage of this law, the Albuquerque PD continued to engage in asset forfeiture on pre-reform terms. The especially aggressive program saw citizens losing their vehicles to law enforcement because of acts committed by other drivers and the PD seized cars by the dozens during DWI arrests. The PD was sued by state legislators for its continued violations of the new law while the law enforcement agency repeatedly claimed the legislation just didn't apply to it.

The plaintiff in this case -- who has just received a ruling that may cause serious problems for asset forfeiture programs elsewhere in the nation -- had her vehicle forfeited by the Albuquerque PD after her son drove it drunk. A ruling in this case allowed Arlene Harjo's lawsuit against the city to proceed, and also resulted in the PD dropping its unlawful -- if not unconstitutional -- program.

Albuquerque announced this week that it will end the program following a federal judge's recent decision to allow Harjo's lawsuit against the city to proceed. "Given changes in state law and recent court rulings, it's time to update the city's policy on vehicle seizures," Albuquerque Mayor Tim Keller said in a statement to the Albuquerque Journal. "As part of constitutional policing, [the Albuquereque Police Department] can continue to seize assets in cases where there has been a conviction. I directed APD to implement this change and have requested City Council to update the ordinance."

The city tried to end Harjo's lawsuit by returning her car to her in 2016. Fortunately, Harjo had the help of the Institute for Justice, which wasn't amused by this attempt to circumvent litigation targeting the whole of PD's asset forfeiture programs.

The earlier ruling cited above allowed Harjo's lawsuit to proceed. This ruling [PDF] -- delivered August 1st -- drives judicial nails into the program itself. [h/t Volokh Conspiracy]

The lawsuit questioned the constitutionality of the incentives created by the program used by the PD. The PD directly profits from these seizures, so the question is whether the incentive is perverse enough to invite abuse of civil liberties. The court says, "Yes. Yes it is."

The Court concludes that the City of Albuquerque has an unconstitutional institutional incentive to prosecute forfeiture cases, because, in practice, the forfeiture program sets its own budget and can spend, without meaningful oversight, all of the excess funds it raises from previous years. Thus, there is a “realistic possibility” that forfeiture officials’ judgment “will be distorted by the prospect of institutional gain” -- the more revenues they raise, the more revenues they can spend.

This would be the case in most asset forfeiture programs. Few are subject to independent oversight and almost all of them allow for discretionary spending. The distorting effects of these programs can be seen… well, pretty much everywhere.

The court goes on to note that it's unlikely those overseeing forfeiture proceedings (mainly city attorneys and forfeiture administrators) are likely not as affected by this distortion since their salaries aren't tied to successful conversions. But it goes on to note the program itself, irrespective of questionable financial interests, is unconstitutional because it incorrectly shifts the burden of proof to the person whose property has been seized.

The City of Albuquerque has determined that innocent owners -- owners who could not have reasonably foreseen that their vehicle would be used in a way that would subject the vehicle to forfeiture -- have a right to keep their vehicles. Thus, the City of Albuquerque has a constitutional obligation, under Mathews v. Eldridge, to implement accurate procedures for determining an owner’s innocence. The City of Albuquerque’s hearing procedures do not discharge that obligation, because proving that the City of Albuquerque has probable cause to seize a vehicle does not reveal anything about what the vehicle’s owner could or could not have reasonably foreseen. Thus, the City of Albuquerque’s hearing procedures are constitutionally inadequate…

As things stood before the city dropped the program, all the city had to prove was the operator of the vehicle committed a crime (usually DWI, but also driving with suspended/revoked licenses). It left the burden of proving the owner's innocence (not the actual driver) to the owner, which is the wrong way to handle things in terms of due process.

This is the way all civil asset forfeiture hearings are handled. The government has to only offer suspicions. It's up to victims to come up with all the proof of innocence or the property's legal provenance. These two declarations by a federal court strike at the heart of civil asset forfeiture everywhere. What's unconstitutional here is unconstitutional elsewhere. If any appeals are involved (and Harjo continues to prevail), the influence of this opinion will spread to the entire district. So, it's potentially a huge ruling, even if it's current impact is limited to Albuquerque's (now abandoned) forfeiture program.

As a bonus, here's some "fun" facts about the PD's forfeiture program (all taken from the ruling, with additional commentary in brackets):

“The City’s Chief Hearing Officer has stated that ‘about half of the vehicles that APD seizes are not owned by the offender that we confiscate it from’”; rather, “‘it’s the mothers, the fathers, the wives, the girlfriends, the brothers, [and] the uncles’” who own the vehicles…

No one from the City of Albuquerque Police Department contacts the owner to “conduct an interview prior to proceeding with the forfeiture” and no one from that department “investigates to determine whether the owner might have a valid innocent owner defense.”

Should the owner prevail in state court, the state court can still “impose storage fees as a condition of the vehicle’s release.”

“One of the most significant expenses paid out of program revenues is employee compensation.” During fiscal years 2009 to 2016, “the City used $3.7 million in program revenues to pay employee compensation,” which amounts to twenty-seven percent “of all expenses paid with program revenues.” Every fiscal year, “the City makes a lump-sum transfer” out of the forfeiture program’s account to pay the entire “salaries and benefits of employees associated with the program.” [This seems to be at odds with the finding that the program does not distort incentives for city forfeiture employees.]

“As a practical matter, the program’s spending is limited by its revenue, not by the City Council.” If the forfeiture program has more funds “available than [the] City Council has appropriated, it can spend even more and [the] City Council will pass a clean up bill retroactively authorizing the spending.”

“Annual performance evaluations for employees in the DWI Seizure Unit -- which serve to assess individual job performance -- list as an ‘Output Measure[]’ to ‘increase the amount of revenue generated from Seized vehicles.’”

“The head of the DWI Seizure Unit agreed that these Output Measures serve as a ‘measure of the unit’s success or failure at meeting its objectives.’”

In recent years,” the forfeiture program’s revenues have “declined, as fewer people are being caught driving under the influence.” “The City ascribes this decline to a variety of factors, including the rise of companies like Uber and Lyft that make it easier to drink outside the home without driving.”

Revenue decline in recent years “has adversely affected morale in the DWI Seizure Unit.” [loooooooool]

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Filed Under: albuquerque, albuquerque police department, arlene harjo, asset forfeiture, new mexico, tim keller

40 Comments

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Anonymous Coward, 10 Aug 2018 @ 12:19pm

Now they need to be sued for every incident
The PD will not learn that they have crossed the line into criminal behavior until someone sues them for every separate time they stole a car. They need to have their future earnings taken to pay back the thousands of innocent owners who had their cars stolen. The local prosecutor will not touch it since they are just as corrupt so a special one will need to be appointed. They might as well fire all these morons and hire cops who aren't tainted by this scandal. If I were affected, they would already owe me and everyone affected the cost of a high price lawyer billing them for all their bullshit and delays.
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Anonymous Coward, 10 Aug 2018 @ 12:19pm

Something is wrong here.

Cops can do NO wrong!
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Ninja (profile), 10 Aug 2018 @ 12:27pm

"Revenue decline in recent years “has adversely affected morale in the DWI Seizure Unit.”"

Have I seriously read that?

I think any and all income obtained via fines, seized property and the likes should go to the Federal coffers to be distributed along with all the rest of the income. I mean, who in their goddamn sanity would have predicted that leaving this money locally would serve as incentive to more property seizing/applying more fines? (do I need to add the /s?)
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Anonymous Coward, 10 Aug 2018 @ 12:45pm

It left the burden of proving the owner's innocence (not the actual driver) to the owner, which is the wrong way to handle things in terms of due process.

Other things that work this way: redlight cameras, speed cameras, parking tickets.
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pixelation, 10 Aug 2018 @ 1:14pm

Revenue decline in recent years “has adversely affected morale in the DWI Seizure Unit.”

I guess it will drive them to drink.

I'll show myself out...
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Anonymous Coward, 10 Aug 2018 @ 1:28pm

Every fiscal year, “the City makes a lump-sum transfer” out of the forfeiture program’s account to pay the entire “salaries and benefits of employees associated with the program.” [This seems to be at odds with the finding that the program does not distort incentives for city forfeiture employees.]

I think the finding was narrowly about how the employees don't personally profit from increased seizures, such as by getting bonuses or getting direct use of the seized assets. On the off chance that the seizures were insufficient to cover program costs, the city would pick up the bill, so the seizure-related employees get paid the same whether they perform below, at, or above cost.

Now, one could argue (and I probably would argue) that as described, it defies belief that the employees have no incentives encouraging them to maximize seizures. It's just that the most obvious ways of encouraging them aren't present, so the court assumes that they are not encouraged. The existence of other motivations is even implied by the remark that the recent reduction in seizures is hurting morale. If they were truly upstanding law enforcement personnel with no personal interest in maximizing seizures, they ought to be thrilled that alleged lawbreaking has declined and with it, seizures. That they are instead dispirited says that they are motivated through unknown means to keep seizures high.
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Anonymous Coward, 10 Aug 2018 @ 1:42pm

This may explain the origin of THIS story:
Departing District Attorney To DOJ: Albuquerque Police Department Is A 'Continuing Criminal Enterprise' Link
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Christenson, 10 Aug 2018 @ 2:00pm

Re:
Drive them to drink...

...and to drive! lol
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Just Me, 10 Aug 2018 @ 2:34pm

Having a seizure
I ruling, for once, for the people?

Ahgh, I think I am having a seizure (although not assets)...

But seriously folks, how to broaden this line of thinking to all states, WITH ENFORCEMENTS AND PENALTIES?????
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discordian_eris (profile), 10 Aug 2018 @ 4:10pm

quote: "Thus, there is a “realistic possibility” that forfeiture officials’ judgment “will be distorted by the prospect of institutional gain” -- the more revenues they raise, the more revenues they can spend."

Should read: Thus, there is a “realistic probability” that forfeiture officials’ judgment “will be distorted by the prospect of institutional and personal gain” -- the more revenues they raise, the more revenues they can keep.
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Sayonara Felicia-San (profile), 10 Aug 2018 @ 4:55pm

What I love about asset forfeiture laws...
...is how blatantly illegal and unconstitutional they are.
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YappleDapple, 10 Aug 2018 @ 6:06pm

Retroactive return of "ALL" seized assets...
Since it was found unconstitutional, someone should file a federal lawsuit against the city forcing all seized assets to be returned.

ALL of them, even if the city sold the assets, they have to buy them back, at whatever the current owner wants for them, refurbishing back to the condition the assets were in when they were seized, and returned to the innocent owners. Plus a hefty "rental" fee for the time the assets were "stolen" by the criminals in this case (the city / county employees).
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Anonymous Coward, 10 Aug 2018 @ 6:42pm

Re: Now they need to be sued for every incident
" The local prosecutor will not touch it since they are just as corrupt"

Especially since they need the cops help with real crimes (I mean the ones not commited at badge point).
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David, 10 Aug 2018 @ 7:50pm

Excellent...
Glad to see a federal court FINALLY rule that the Constitution means EXACTLY what it says. All asset forfeitures are unconstitutional.
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Anonymous Coward, 11 Aug 2018 @ 1:01am

Proper thing to do to the Albuquerque PD
Their knowing defiance of legislation is beyond the pale - to be frank the leadership should be fired and everyone involved prosecuted to the fullest extent of the law. Everyone involved should be blackballed from working as a goddamn mall cop. This is no less than a police coup for no reason other than they didn't want the gravy train to end.
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Anonymous Coward, 11 Aug 2018 @ 2:25am

Morale Relief
"Revenue decline in recent years 'has adversely affected morale in the DWI Seizure Unit.'"

Let's euthanize half the unit and forfeit their assets. Give the proceeds from liquidation of those assets to the surviving members and see whether morale improves. Lather, rinse, and repeat until the morale problem is solved. This process WILL eventually resolve the issue.
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Anonymous Coward, 11 Aug 2018 @ 5:57am

When you have an entire unit dedicated to maximizing revenue, it is no longer protect and serve but profit and serve.
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Anonymous Coward, 11 Aug 2018 @ 7:44am

Re:
Still it is a conflict of interest, no getting around that.
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Anonymous Coward, 11 Aug 2018 @ 7:48am

1) steal the property of innocent citizens
2) lose court case & have to reimburse victims
3) tax payers pay back victims
4) you keep ill gotten gains
5) Profit!
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Anonymous Coward, 11 Aug 2018 @ 7:56am

Re: if not unconstitutional
Why equivocate? The Constitution is pretty clear on this one. Nobody could reasonably call you alarmist for interpreting it so.
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wshuff (profile), 11 Aug 2018 @ 8:07am

The only rational thing to do is outlaw Uber and Lyft. Get those drunk drivers back on the road and watch the revenue soar.
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Mark Thompson, 11 Aug 2018 @ 8:43am

Re: Now they need to be sued for every incident
Exactly, they need to seize more cars so that they can pay back people for the existing ones :) Cities have authorized this, cities need to be liable for paying people.
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Hugo S Cunningham (profile), 11 Aug 2018 @ 9:03am

Exception: Forfeiture against scofflaw dangerous drivers
In general, I share the editor's libertarian opposition to forfeiture programs, especially ones that infringe the Eighth Amendment ban on "excessive fines."

I lack sympathy, however, for owners who lend their cars to drunks or others with licenses already suspended for dangerous driving. Here the punishment (car forfeiture) fits a very dangerous crime. Seize the car, to be returned if the driver is convicted of theft. If the owner does not want to prosecute (eg a relative), then keep the car but give the owner an automatic default judgement for its value against the driver. It would be the owner's decision whether to collect, and if so under what conditions.
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Anonymous Coward, 11 Aug 2018 @ 6:07pm

Re: Exception: Forfeiture against scofflaw dangerous drivers
Until it is your teenage son in your car!
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Toom1275 (profile), 11 Aug 2018 @ 6:47pm

Now to wait for the day the RIAA's asset forfeiture scam collapses.
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Hugo S Cunningham (profile), 11 Aug 2018 @ 8:13pm

Re: Re: Exception: Forfeiture against scofflaw dangerous drivers
If your teenager gets his license suspended for dangerous driving, it would be a prudent investment to change the lock on your more expensive car(s).
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That One Guy (profile), 11 Aug 2018 @ 8:19pm

Re: What I love about asset forfeiture laws...
Nonsense, I mean it's not like there's a constitutional right explicitly prohibiting taking someone's stuff without due process rather than mere accusation or anything.

And really, it's not like (people accused of being) criminals have rights anyway, so even if there was some vague prohibition it clearly still wouldn't count.
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Anonymous Coward, 12 Aug 2018 @ 12:10pm

Re: Re: Now they need to be sued for every incident
Sounds like a pyramid scheme
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Anonymous Coward, 12 Aug 2018 @ 12:12pm

Re: Re: What I love about asset forfeiture laws...
Did Giuliani say that?
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Anonymous Coward, 12 Aug 2018 @ 12:14pm

Re: Exception: Forfeiture against scofflaw dangerous drivers
The motor vehicle rental companies are gonna love this!
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John Smith, 12 Aug 2018 @ 12:40pm

Re: Re: Now they need to be sued for every incident
Reminds me of the warning my city gave to those who ignore their jury summons, and how they'll be prosecuted...which of course gives them the right to a jury trial.
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Anonymous Coward, 12 Aug 2018 @ 1:14pm

Re:
Yes, it is sad that one needs to interrupt one's daily grind in order to show up for a court date so that you can inform the court that indeed your vehicle is not capable of the stated speed on the ticket even downhill with a tail wind.

Human review? What's that?
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Anonymous Coward, 12 Aug 2018 @ 3:11pm

I so wantto see these stopped
These laws are the reasons you see cases like

U.S. vs. $120,000 cash

Such lawsuits really do exist.
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That One Guy (profile), 12 Aug 2018 @ 7:28pm

Re: Re: Re: What I love about asset forfeiture laws...
Beat's me, though with some of the 'creative' excuses I've seen for programs like this/treatment of those accused of crimes in the past I wouldn't be surprised if someone had said what I did with a straight face.
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Anonymous Coward, 13 Aug 2018 @ 12:40am

When CAF is finally deemed wholely unconstitutional across the nation. I believe PD's should retroactively return what was stolen, or fair value of the property at the time of the theft.
PD: But that will bankrupt us.
Judge: People like you should have already known your actions were unethical. So don't expect any mercy
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Anonymous Coward, 13 Aug 2018 @ 5:17am

Re: Re: What I love about asset forfeiture laws...
And if you are someone who has never set foot into the US and ends up with all assests seized by the US for an allegation of criminal activity that should you then use your due process right in the country you live in to contest the seizure of assets by the US you are then labelled a 'fugitive' by the US which then strips you of all rights to contest the seizure.
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That One Guy (profile), 13 Aug 2018 @ 9:49am

Re: Re: Re: What I love about asset forfeiture laws...
Well yeah, I mean obviously if you not only know about your legal rights but try to exercise them then clearly you're a criminal and deserve to be punished.

'Only criminals assert their rights and/or know the law', that's just common sense.
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Anonymous Coward, 13 Aug 2018 @ 11:01am

Re: Re: Re: Re: What I love about asset forfeiture laws...
I believe they are referring to the guy in the mega upload case. They denied him access to his money b/c they seized it and won't let him challenge it (conveniently) b/c they say that he is a criminal.
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That One Guy (profile), 13 Aug 2018 @ 7:05pm

Re: Re: Re: Re: Re: What I love about asset forfeiture laws...
Yeah, so was I.

'Challenge extradition? That looks like criminal behavior to me, no challenge for the theft of your stuff allowed.'
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Zapitron (profile), 14 Aug 2018 @ 10:40am

Re: Exception: Forfeiture against scofflaw dangerous drivers
You don't need forfeiture. Just make it a crime to knowingly give your car to someone you have reason to believe shouldn't be driving. Then the owner can have due process in court when they're prosecuted, instead of having the weird exception of a parallel justice system that circumvents the constitution.

Once you've got the guilty verdict after due process, then you can decide what's an appropriate sentence and I'm sure someone will suggest the idea of taking the car, if that seems like the right thing to do, given the circumstances.
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