Agencies fail to document forfeited assets as law requires
State treasurer, who’s supposed to collect cash and property, says measure doesn’t work
New Mexico sparked a nationwide trend when it banned civil forfeiture in 2015 — becoming the first state to end the practice of seizing and selling the property of people who had been accused, though not convicted, of a crime.
Thirteen states followed suit.
But three years later, the effort in New Mexico appears stalled.
State law enforcement agencies are not complying with the reporting requirements of the law, according to records requests. It’s also not clear what has become of currency that reportedly has been forfeited. And the state treasurer — who is supposed to receive lawfully forfeited currency and property — complains the measure is unworkable because it’s unfunded and doesn’t include enforcement provisions.
The laws, created in 2015, require law enforcement agencies to report all forfeitures annually to the state Department of Public Safety, which is required to publish the information on its website by April 1 of each year.
In a search for the reports, none had been posted since an initial flurry in 2015.
Cars being seized from people who weren’t the ones driving and cars being seized from someone that didn’t do anything wrong — all of that is driven by this profit incentive.”
Department spokesman Herman L. Lovato said in response to an inquiry from The New Mexican that “with the assistance of public interest groups,” the department had discovered the forfeiture data had not been published.
Asked which public interest groups raised the issue, Lovato said only the newspaper.
Others, however, have made inquiries. Robert Johnson, an attorney with the Institute for Justice, an Arlington, Va.-based public interest law firm, provided the newspaper a letter it sent the department in June, expressing concern the reports weren’t being published and asking the Department of Public Safety to provide the records.
If the department didn’t comply, the letter said, the firm would be “forced to explore legal remedies.”
The department has since posted reports indicating that while reporting was fairly robust in 2015 — with some jurisdictions reporting seizures of bicycle parts and amounts of currency as small as 11 cents — New Mexico State Police was the only agency that reported in 2016. According to the state police report, it seized a total of $203,922.
In 2017, state police reported seizing $17,920. Only one other agency — the village of Angel Fire — reported in 2016 or 2017.
The law requires local agencies to submit their reports to district attorney’s offices in their jurisdictions. But the First Judicial District Attorney’s Office said it has never received any reports.
“We’re very troubled that municipalities are not completing these reports,” Johnson said. “This is something state law is unequivocal about. The importance of reporting shouldn’t be understated here. It’s the only way for the public to keep an eye on what is going on with forfeiture. What we see time and time again is the lack of information around forfeiture allows abuse to thrive. Getting information can clean up those practices.”
Meanwhile, the city of Santa Fe continues to operate a program that allows it to keep or sell vehicles without convictions under certain circumstances. Albuquerque discontinued a similar program in April in the face of pending lawsuits that allege the program violates defendants’ civil rights.
Santa Fe’s city government has taken the position in two court cases pending before the state Court of Appeals that the city’s forfeiture ordinance is not covered by the state’s Forfeiture Act.
“Policymakers made clear their desire that this be the law of the land in Santa Fe when they drafted, debated and passed the ordinance,” city spokesman Matt Ross said in an email. “Unless instructed otherwise, city attorneys have no reason … to assume that the will of those policymakers has changed, and they have not received any direction to stop defending the ordinance.”
Mayor Alan Webber said in an email he had not had the opportunity to discuss the policy with Santa Fe’s new city attorney.
The city seized about 473 vehicles under its ordinance in 2017, according to data provided by Ross. About 274 were returned to owners, in some cases with the condition that they install an ignition interlock. About 145 of them were sold at auction, netting the city about $496,755.
According to the city ordinance, the money generated from the sale of the forfeited vehicles is earmarked to pay for the operation of the program and DWI prevention measures. The ordinance also allows the city to retain and use up to five vehicles per year.
Ross said because the Santa Fe Police Department seizes vehicles under the municipal ordinance, not the state Forfeiture Act, it does not have to report these car forfeitures to the Department of Public Safety.
Johnson said Santa Fe’s practices are precisely what the Institute for Justice wants to stop.
“Cars being seized from people who weren’t the ones driving and cars being seized from someone that didn’t do anything wrong — all of that is driven by this profit incentive,” Johnson said. “It violates the Constitution for police to have a financial incentives to take property from innocent people. And that’s the problem with the Santa Fe program, too. The money is directed back to pay the expenses of the program and related costs for the same agency, and that violates the Constitution and the 2015 law.
“We are going to keep working to make sure the process comes to an end.”
When the Legislature reformed the Forfeiture Act in 2015, it decided property and currency legitimately forfeited by law enforcement agencies around the state should be handed over to the state treasurer for deposit into the general fund.
But it appears that portion of the law isn’t being strictly followed, either.
State Treasurer Tim Eichenberg expressed frustration with the 2015 law in a recent interview, noting “what we got was a bill that was not workable,” he said. “It came to the Treasurer’s Office unfunded with no policy guide, and I have no way to enforce it. How can I enforce it without funding?”
Eichenberg said his office has accepted some currency delivered under the requirements of the law. But he added the office also has turned away physical property that agencies wanted to deliver to his office because he has no place to to put it.
Bills proposing fixes to the law were introduced in both the 2017 and 2018 sessions, but went nowhere.
In response to a records request for all currency or property delivered to the state treasurer in compliance with the law, records custodian Velvet Valentine responded that since the law was passed the office had received $14,221 and four bicycles from the city of Farmington. The money was placed in the state general fund, according to Valentine, and the bicycles were “donated.”
Valentine’s response made no mention of the $116,600 that agencies statewide reported having forfeited in 2015, or the $203,992 and $17,920 the state police reported in 2016 and 2017.
“I can’t speak to [Department of Public Safety’s] number,” Deputy State Treasurer Samuel K. Collins said when asked to address the discrepancy. “We got what we got.”
State police Lt. Elizabeth Armijo referred questions to the Department of Public Safety.
Public Safety spokesman Lovato noted that while he didn’t know the exact nature of the seized funds, he said they could have been handled in a number of different ways other than being deposited with the State Treasurer’s Office. Those options included funds being held by district courts pending formal forfeiture proceedings, or funds returned to the owners.
Robert Johnson, an attorney with the Institute for Justice, a public interest law firm