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Affluent Investor | June 23, 2017

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City Officials Who Ignore State Law Against Civil Asset Forfeiture Get Hauled Into Court

Courtroom inside Tombstone Courthouse State Historic Park, Arizona, USA

Courtroom inside Tombstone Courthouse State Historic Park, Arizona, USA

Recently I wrote about a suit challenging the law in Arizona – a state that’s very friendly towards the abomination called civil asset forfeiture. There, innocent people who have had their property stolen by public officials have to worry that if they fight to get it returned and lose the case, the government will force them to pay out additional money to cover its legal costs in fending off their claims.

Across the state line in New Mexico, a different but equally vexing legal situation prevails. Back in summer, the state legislature unanimously passed a bill that defangs the civil asset forfeiture viper and Governor Martinez promptly signed it into law.

Amazingly, however, civil asset forfeiture continues in New Mexico, as officials in Albuquerque and other cities scoff at the law.

On November 18, two state senators supported by the pro-liberty litigators at the Institute for Justice filed suit in state court to compel all New Mexico officials to obey the law. This step is necessary because city officials are so desperate to keep their gravy train rolling that they have continued to act as if nothing had changed.

The Institute for Justice has released a fascinating report on this battle.

“Albuquerque officials,” the report states, “have responded to these landmark reforms with defiance. Albuquerque has continued to run its lucrative civil asset forfeiture machine despite the legislature’s clear command that only criminal forfeiture is allowed.”

Especially brazen is the city’s decision to purchase an even larger lot to store vehicles it plans to confiscate from non-criminals. The city council recently approved a $2.5 million bond issue to pay for the lot and it intends to use the proceeds from civil asset forfeitures to service the bonds.

The Institute for Justice report also gives us a good look at the sort of cases that Albuquerque’s forfeiture machine generates. Claudeen Crank’s car was stolen by a stranger and taken on a drunken joy ride. After the police arrested the perpetrator, they seized her car on the grounds that it had been used in a crime and was thus “guilty” and subject to forfeiture.

She then had to fight through the costly system to get her car back. Even though Albuquerque (and many other cities) doesn’t always sell the property it seizes, it still makes money from the system – the machine – it has set up. The city counts on a steady stream of revenue from the fees people must pay, including fees simply to request a hearing over a property seizure and storage costs that increase with time.

This system has been in place since the 90s and now is such a revenue source that it is factored into the city’s budget. Other cities that want to maximize their haul of confiscated property have been advised to copy “the masters” in Albuquerque.

Officials also want to see civil asset forfeiture continue because it creates opportunities for personal gain, such as driving seized vehicles for their personal use.

Predictably, Albuquerque officials are resorting scare tactics to defend their machine. As we read here, Mayor Richard Berry claims that the city needs civil asset forfeiture to protect the people against drunk drivers. Of course it is easier to fight crime by using tactics that harm innocent people, but that neither makes it right nor legal.

In the lawsuit, the issue is simple: Does the state’s Forfeiture Reform Law apply to Albuquerque or not? Here’s the argument that the defense hopes to get the judge (and future appellate courts) to accept – that the law is “ambiguous” because it does not state that Albuquerque and other cities may no longer use civil asset forfeiture. City attorney Jessica Hernandez breezily asserts that Albuquerque’s forfeiture system is “completely separate from the state Forfeiture Act.”

“In this view,” the IJ report counters, “the legislature was required to say that it was ending civil forfeiture not only throughout the state but specifically in Albuquerque and other cities.” Such statutory construction is plainly ridiculous and contrary to New Mexico Supreme Court precedents. City officials are wasting taxpayer money on this absurd and desperate effort at maintaining an illegitimate source of money and perks.

This case is emblematic of the way many of our “civil servants” look at the world. Like the aristocrats of old, they think that laws are for the little people and should never get in their way. We’ve seen that attitude on display throughout the Obama administration (see my article on Professor David Bernstein’s recent book Lawless), but we find it on display at the state and local levels, too.

It shouldn’t be necessary to sue public officials who have sworn to uphold the law to stop violating it, but that’s where we are.

 

Originally posted on Forbes.

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