April 12, 2018

Keller administration to review pending DWI vehicle seizure lawsuits against the city

Andy Lyman

Albuquerque City Hall

Albuquerque Mayor Tim Keller this week told city police officers to stop the city’s DWI vehicle seizure program. Under existing ordinance, the police department can impound vehicles after DWI arrests, but before the driver has been convicted. Keller called on the city council to permanently change the policy, but there are still pending lawsuits by people who allege the city violated state law and the U.S. Constitution by taking vehicles and then charging owners to release them.

Albuquerque’s Chief Administrative Officer Sarita Nair said city attorneys are evaluating each case individually before taking any further action.

“Our legal department is doing a case-by-case review of every case, whether it’s in the initial stages, whether it was set for a hearing at the city administrative hearing level or whether it’s in the district or higher courts, to make sure that we handle all the cases consistently, fairly and transparently,” Nair told NM Political Report.

At least two of those cases have been pending for years. In 2016, the Albuquerque Police Department seized Arlene Harjo’s car after arresting her son and charging him with a DWI while driving her vehicle. Harjo’s attorneys argued the city violated her right to due process by taking her car and then requiring her to prove her innocence in a city hearing. They also argue that the city’s vehicle forfeiture program violates a 2015 state law that prohibits state and local police from taking property before a conviction.

The Institute for Justice, a national libertarian organization, represents Harjo in the state court case, and in a federal court case over the same issue.

U.S. District Court Judge James Browning said last month that state law preempts the city’s code and that Harjo’s right to due process was violated. Browning denied the city’s earlier request to dismiss the case, but said it’s up to the state court to decide whether or not the city violated state law.

Institute for Justice Senior Attorney Robert Frommer told NM Political Report he hasn’t discussed settlement with city attorneys, nor would he guess what might happen.

First, Frommer said, he wants the city council to officially change the city’s ordinance.

“Let’s see if the city council walks the walk,” Frommer said.

Albuquerque attorney Joe Kennedy, who has extensive knowledge of civil rights litigation and settlements, said the Keller administration will have to make some tough decisions when it comes to handling the pending cases.

“The short answer is, it is very complex,” Kennedy said.

It’s not just about deciding whether to settle, he said, but also negotiating a settlement amount. Impounded cars might be worth less than what an owner still owes the dealer or bank, Kennedy said.

All the pending lawsuits predate Keller’s election.

Nair stopped short of blaming former Albuquerque Mayor Richard Berry’s administration directly for the inherited lawsuits, but noted that Albuquerque officials can learn from other cities that are already compliant with state law.

“Other jurisdictions faced this when the state law first came into effect and pretty much every other municipality just decided to comply,” Nair said. “We’re reaching out to them, as well, to understand how other municipalities have handled it so we don’t have to reinvent the wheel.”

In 2016, less than a year after Gov. Susana Martinez signed the New Mexico Forfeiture Act that banned civil asset forfeiture, two state senators sued the city for continuing the DWI seizure program. Democratic State Sen. Daniel Ivey-Soto and then-Senator Lisa Torraco, a Republican, aided by the Institute for Justice, asked a judge to make the city stop the program.

Berry’s administration argued the city’s forfeiture program was a “nuisance abatement” program “narrowly tailored to target repeat DWI and revoked license offenders, who endanger the public with the vehicles they use” and so did not violate state law.

An Albuquerque state court judge ruled Ivey-Soto and Torraco lacked standing to sue on behalf of the citizens of Albuquerque and dismissed the case. Just days after the dismissal, the Institute of Justice filed the lawsuit on behalf of Harjo.

Predating both of those cases is a class action lawsuit that goes back to 2013 with more than a dozen plaintiffs who argue the city illegally took their vehicles. That case is scheduled for a hearing, later this month.