November 18, 2015

Lawmakers sue to stop ABQ from seizing property before convictions

Andy Lyman

Second Judicial District Court in Albuquerque

Two New Mexico Senators, with the help from a national public interest law firm, announced a lawsuit against the City of Albuquerque Wednesday over the city seizing property.

The suit asks the Second Judicial District Court to order the city to stop its current practice of taking ownership of property, including those accused but not convicted, of driving while intoxicated.

Second Judicial District Court in Albuquerque Photo Credit: Andy Lyman

Andy Lyman

Second Judicial District Court in Albuquerque Photo Credit: Andy Lyman

Sen. Daniel Ivey-Soto, D-Albuquerque said even though Albuquerque is a home-rule city, they cannot go against state laws. He pointed out the recent law passed says there is “only” criminal forfeiture in New Mexico, making it unlawful to take property before a criminal conviction.

“Last time I checked Albuquerque is geographically in the state of New Mexico,” Ivey Soto said. “The word ‘only’ means there is no other option.”

Gov. Susana Martinez signed legislation earlier this year that halted the practice of civil asset forfeiture in the state.

Sen. Lisa Torraco, R-Albuquerque, who also joined in the suit, said the city still has a right to take property after a conviction, but not before.

“It’s unfair, it’s wrong and it’s illegal,” Torraco said of the city’s current practice.

NM Political Report reached out to Mayor Richard Berry’s office for a comment on the suit. A spokeswoman referred questions to the city’s legal department.

In an email to NM Political Report City Attorney Jessica Hernandez said the City of Albuquerque did not ignore the state law. Instead, she wrote, the city ordinance is “a narrowly-tailored nuisance abatement law” aimed at protecting citizens from repeat offenders who drive while impaired.

“My staff and I looked carefully at how the new state law would impact the City’s DWI vehicle forfeiture program,” Hernandez wrote. “The City’s program is exempt from the New Mexico Forfeiture Act according to the state law’s own terms.”

She added that previous court cases have shown that the city is exempt from the state law.

Hernandez served as legal counsel for Martinez when the governor signed the civil asset forfeiture reform bill earlier this year.

While the City of Albuquerque has a local ordinance that allows for seizures before a conviction, Martinez signed a law during the 2015 Legislative session that would only allow law enforcement to take property after a conviction.

Ivey-Soto and Torraco, both former prosecutors, agree that there is a time and place to take property involved in a crime, but that time is after a conviction.

Ivey-Soto went on to criticize the city for seemingly counting on revenue from forfeitures before they happen.

“They’ve already decided they were going to return 350 cars,” Ivey-Soto said. “Now what happens when you’re motorist number 351?”

The injunction filed by the two lawmakers is not asking for any damages, but instead asks the city to stop taking property before a conviction.

A court decision is expected to happen in about 30 days.

“It will move very quickly,” Torraco said. “We should have a decision by the end of the year.”

Update: Added comment from the City of Albuquerque.