At the beginning of August, a federal judge held that Albuquerque’s civil forfeiture program was unconstitutional and violative of procedural due process. In this landmark case, the court held that the law forced property owners to prove their own innocence which negates citizens’ constitutional protection to being viewed as innocent until proven guilty.
The judge also asserted that forfeiture officials possess an institutional incentive to prosecute forfeiture cases because the more revenue it raises, the more funds are available to spend. In fact, between 2009 and 2016, Albuquerque’s civil forfeiture program generated an incredible $11.8 million.
New Mexico’s civil forfeiture process has been under considerable attack since 2014 when the New York Times exposed program officials using their power to create a “wish list” of items to seize and calling the program a “gold mine.” Thus, in July, 2015, New Mexico became the second state to permit only criminal forfeitures following a conviction.
However, Albuquerque refused to comply and continued to seize vehicles and charge owners—who hadn’t been convicted of any crime—thousands of dollars to regain their property. As the city continued to abuse its power by rejecting obvious innocent owner claims and claiming that its probable-cause hearings were adequate to protect due process, a 2016 Institute of Justice lawsuit resulted in the aforementioned decision.
Minnesota vehicle forfeiture law invalidated
We briefly discussed the state’s DWI vehicle forfeiture law and the potential that innocent vehicle owners could lose their vehicles back in 2014, and, today, it merits a revisit.
One week after the New Mexico court’s verdict, the Minnesota Court of Appeals struck down substantial portions of the state’s DWI vehicle forfeiture law on the same grounds as stated in the New Mexico case—that it was unconstitutional and violated due process.
More specifically, Minnesota’s forfeiture scheme, essentially, denies vehicle owners the right to a prompt and meaningful hearing, thereby leaving vehicles in impound lots for ridiculous lengths of time—years, in some cases—without these owners having their day in court. Second, the forfeiture program’s “hardship relief” is virtually ignored.
What, exactly, gets forfeited?
In 2016, 59 percent of civil forfeitures in Minnesota were vehicles—cars, motorcycles, trucks, and ATVs—28 percent of cases were cash, 11 percent were guns, and one percent was other property. In most cases alcohol and/or drugs were involved—especially with vehicles seized due to drunk driving and property from drug offenses—however, property was also seized in a variety of other crimes such as burglary, robbery, assault, weapons charges, and prostitution, for example.
Civil asset forfeiture has always been controversial in Minnesota. In 2010, the state prohibited forfeited property to be sold to any law enforcement members, employees, and their families. Then, in 2014, a new law required a conviction in drug cases and drive-by shootings for asset forfeiture. Finally, in 2017, the legislature passed a law protecting vehicle owners whose cars were forfeited due to someone else getting a DWI in their vehicle.
Despite these reforms, however, the data demonstrate that civil asset forfeitures are not decreasing. They are remaining at a steady 6,000 per year since 2011 with annual proceeds of $6 million. In 2016, forfeitures increased to 7,000 with $7.4 million in proceeds.
A question of fairness
Whereas civil asset forfeiture was designed to seize the instrument of a crime and its proceeds, it has been increasingly used as a punishment. This is especially problematic for the regular person who might have gotten a DWI and had his/her car seized. Even more troubling is when the vehicle’s owner wasn’t even the person who allegedly committed a crime but who has lost his/her vehicle.
In Minnesota, an administrative process handles forfeitures and any challenges must occur in civil court. This puts an extreme burden on the average person to hire a lawyer and fight the forfeiture. Consequently, many property owners fail to even contest the forfeiture because of the cost to do so.
Lee McGrath, the managing attorney at the Minnesota branch of the libertarian Institute for Justice, has been advocating for a criminal asset forfeiture process like those in New Mexico and Nebraska. In these situations, the forfeiture accompanies the defendant through the criminal court process thus requiring the prosecutor to file forfeiture charges along with the criminal complaint.
Given recent changes in New Mexico—and other states looking to follow suit—this is definitely an issue to keep an eye on in the near future.