by Derek Gilna

A federal judge in a July 28, 2018, ruling has effectively ended Albuquerque, New Mexico’s civil asset forfeiture program, finding that, “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.”

U.S. District Court Judge James O. Browning’s ruling effectively blows a hole in city finances, stating that the practice “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.”

Unlike forfeiture proceedings in criminal cases, which deal with property used in the commission of a crime, civil forfeiture laws permit a municipality to seize property owned by citizens merely suspected of being connected to criminal activity, even if the owner isn’t charged with a crime. A 2016 lawsuit against the city, filed by the public interest law firm, Institute for Justice, alleged serious due process violations in the seizure of a car owned by Arlene Harjo, whose son allegedly drove her vehicle while under the influence of alcohol, without her knowledge.

According to the court’s opinion, its two main areas of concern were the requirement that citizens bore the responsibility of establishing innocence to recover their property, and the city of Albuquerque apparently let its desire for revenue collection, rather than due process, drive its forfeiture program.

“The City of Albuquerque’s motor vehicle seizure and forfeiture ordinance, …§§ 7-6-1 to -7 (“Forfeiture Ordinance”), provides that a vehicle is ‘subject to immediate seizure and forfeiture . . . if it is . . . [o]perated by a person in the commission of a DWI offense’ and the driver has at least one prior DWI arrest, summons, or conviction…. If somebody other than the alleged offender owns the seized vehicle, the owner bears the burden to “demonstrate[] by a preponderance of the evidence that the owner . . . could not have reasonably anticipated” the criminal conduct.

This burden is what tipped the scales in favor of Harjo, according to Institute for Justice attorney Robert Everett Johnson. He said that the Institute, “will undoubtedly use this decision to attack civil forfeiture programs nationwide. Today’s ruling is a total victory for fairness, due process and property owners everywhere,” he continued. “The court ruled the government must prove that an owner did something wrong before it can take away their property. Beyond that, the judge ruled that law enforcement cannot benefit financially from revenue generated by a forfeiture program. Together, these rulings strike at the heart of the problem with civil forfeiture.”

“The Court grants summary judgment in Plaintiff Arlene Harjo’s favor on the theory that the forfeiture personnel have an unconstitutional institutional incentive to prosecute forfeitures,” Judge Browning said. “The Court also grants summary judgment in Harjo’s favor on her claim that the Forfeiture Ordinance’s procedures violate procedural due process. The Court denies summary judgment on all other grounds.” See: Harjo v. City of Albuquerque, 2018 U.S. Dist. LEXIS 127905 (2018).

Additional Source: reason.com/blog