Asset Forfeiture Reform in New Mexico

 

384px-Governor_NewMexicoLate last month, the New Mexico legislature passed a bill — with no opposition in either chamber — reforming civil asset forfeiture, a process that is sometimes abused by law enforcement to seize citizens’ private property without their being convicted of a crime, or following a minor traffic violation. Worse yet, under some arrangements with the Feds, police departments can keep the money to use for their own budgets. No one knew whether Governor Susana Martinez would sign SB 560, and the clock was ticking before the legislature’s session ended. Well, she has done it!

Republican New Mexico Gov. Susana Martinez has signed into law House Bill 560, the state’s broad asset forfeiture reform legislation. The bill, introduced by Republican Rep. Zachary Cook, had complete bipartisan approval in the state’s split House (controlled by Republicans) and Senate (controlled by Democrats).

More from Reason:

It eliminated the concept of “civil” asset forfeiture, meaning law enforcement agencies would have to actually convict people of crimes to take their assets. It also requires all proceeds from asset forfeitures by law enforcement agencies to be put into the state’s general fund. This is important because it reduces police incentives to engage in reckless forfeiture efforts, because they’d no longer be able to keep what they grab. It also means that the law enforcement agencies wouldn’t be able to bypass state law by turning to the Department of Justice’s Equitable Sharing Program. The program lets local law enforcement agencies keep seized assets by partnering with federal agencies, but it requires the locals to have their own funds for them. House Bill 560… would forbid law enforcement agencies from retaining any forfeited property.

Image Credit: “Governor NewMexico” by The state of New Mexico. Licensed under CC BY-SA 4.0-3.0-2.5-2.0-1.0 via Wikimedia Commons.

There are 42 comments.

Become a member to join the conversation. Or sign in if you're already a member.
  1. user_189393 Inactive
    user_189393
    @BarkhaHerman

    Pathfinder1208:Suppose you have a courier who is stopped in New Mexico for speeding. The officer notices a lot of cash in the back seat of the vehicle. Say, one million dollars. The officer asks where did you get the money. Courier says, “my boss made it by selling children as sex slaves in California. I am driving the money to Texas.” Besides speeding, has the courier committed a crime in New Mexico? (if your answer is yes, a reference to any state statute would be nice) If he has not committed a crime, do you let him drive away with the million dollars?

    What if he was lying?

    In*all* cases, asset forfeiture should go through due process.

    • #31
  2. Sisyphus Member
    Sisyphus
    @Sisyphus

    iWe:It seems like a ready-made issue for Rand Paul, though.

    Remove asset forefeiture powers from all agencies. All must follow due process.

    Demilitarize all domestic agencies except those very few that MUST be armed (the FBI springs to mind).

    I always liked the traditional check that the FBI could call on National Guard resources through the state if necessary. The politics would assure attention and mitigate against abuse. Give the same resources to the FBI, they have to use them to justify spending the money necessary to keep them.

    • #32
  3. user_75648 Thatcher
    user_75648
    @JohnHendrix

    Excellent news!

    I learned about Civil Forfeiture on Ricochet’s Lawtalk podcast and quickly concluded that Civil Forfeiture was a terrible policy.

    Hopefully New Mexico will lead the rest of the nation into tossing Civil Forfeiture.

    • #33
  4. Sisyphus Member
    Sisyphus
    @Sisyphus

    Pathfinder1208:Suppose you have a courier who is stopped in New Mexico for speeding. The officer notices a lot of cash in the back seat of the vehicle. Say, one million dollars. The officer asks where did you get the money. Courier says, “my boss made it by selling children as sex slaves in California. I am driving the money to Texas.” Besides speeding, has the courier committed a crime in New Mexico? (if your answer is yes, a reference to any state statute would be nice) If he has not committed a crime, do you let him drive away with the million dollars?

    My understanding is that normal criminal forfeiture would usually apply, the money being seized as evidence in the course of an arrest. I am not a lawyer, much less a member of the New Mexico bar, but when the federal government put in the mandate that banks provide reports on cash transactions above $10,000 I seem to remember a flurry of me-too provisions that make the carrying of larger sums by itself grounds for suspicion, cavity searches, and temporary detention. In the meantime, finger prints get checked for open warrants and the like. And, after all, for a confession like that applicable warrants and expedition requests can appear quicker than the release deadline.

    Of course, if a professional courier were carrying a million dollars, it would be concealed where it would not be uncovered in a typical traffic stop search, even with reasonable suspicion.

    And you need all this free legal advice because?

    • #34
  5. Leigh Inactive
    Leigh
    @Leigh

    iWe:Has any R candidate for President added this to their platform? Because they really, really should.

    Maybe the nominee will consider it when he puts Martinez on the ticket.

    • #35
  6. Pathfinder1208 Member
    Pathfinder1208
    @Pathfinder1208

    Barkha Herman:

    Pathfinder1208:Suppose you have a courier who is stopped in New Mexico for speeding. The officer notices a lot of cash in the back seat of the vehicle. Say, one million dollars. The officer asks where did you get the money. Courier says, “my boss made it by selling children as sex slaves in California. I am driving the money to Texas.” Besides speeding, has the courier committed a crime in New Mexico? (if your answer is yes, a reference to any state statute would be nice) If he has not committed a crime, do you let him drive away with the million dollars?

    What if he was lying?

    In*all* cases, asset forfeiture should go through due process.S

    Barkha Herman:

    Pathfinder1208:Suppose you have a courier who is stopped in New Mexico for speeding. The officer notices a lot of cash in the back seat of the vehicle. Say, one million dollars. The officer asks where did you get the money. Courier says, “my boss made it by selling children as sex slaves in California. I am driving the money to Texas.” Besides speeding, has the courier committed a crime in New Mexico? (if your answer is yes, a reference to any state statute would be nice) If he has not committed a crime, do you let him drive away with the million dollars?

    What if he was lying?

    In*all* cases, asset forfeiture should go through due process.

    I am unaware of any state that seizes assets without an administrative hearing. Such a hearing requires notice to the person whose property was seized. They are afforded a hearing in front of an administrative judge and allowed to be represented by counsel. They also have a right to appeal. Again, if anyone is aware of any state  that does not afford this due process to individuals I would love to hear about it.

    • #36
  7. Pathfinder1208 Member
    Pathfinder1208
    @Pathfinder1208

    Sisyphus:

    Pathfinder1208:Suppose you have a courier who is stopped in New Mexico for speeding. The officer notices a lot of cash in the back seat of the vehicle. Say, one million dollars. The officer asks where did you get the money. Courier says, “my boss made it by selling children as sex slaves in California. I am driving the money to Texas.” Besides speeding, has the courier committed a crime in New Mexico? (if your answer is yes, a reference to any state statute would be nice) If he has not committed a crime, do you let him drive away with the million dollars?

    My understanding is that normal criminal forfeiture would usually apply, the money being seized as evidence in the course of an arrest. I am not a lawyer, much less a member of the New Mexico bar, but when the federal government put in the mandate that banks provide reports on cash transactions above $10,000 I seem to remember a flurry of me-too provisions that make the carrying of larger sums by itself grounds for suspicion, cavity searches, and temporary detention. In the meantime, finger prints get checked for open warrants and the like. And, after all, for a confession like that applicable warrants and expedition requests can appear quicker than the release deadline.

    Of course, if a professional courier were carrying a million dollars, it would be concealed where it would not be uncovered in a typical traffic stop search, even with reasonable suspicion.

    And you need all this free legal advice because?

    My understanding is that normal criminal forfeiture would usually apply.

    No, it would not apply. No crime has been committed in New Mexico. The money would go to purchase more children (probably poor illegals crossing the border that no one would miss) and selling them into sexual slavery.

    And you need all this free legal advice because?

    It is hard to believe that all it takes is a simple law school hypothetical for people to abandon all civil discourse.

    • #37
  8. Sisyphus Member
    Sisyphus
    @Sisyphus

    Pathfinder1208:

    Sisyphus:

    Pathfinder1208:Suppose you have a courier who is stopped in New Mexico for speeding. The officer notices a lot of cash in the back seat of the vehicle. Say, one million dollars. The officer asks where did you get the money. Courier says, “my boss made it by selling children as sex slaves in California. I am driving the money to Texas.” Besides speeding, has the courier committed a crime in New Mexico? (if your answer is yes, a reference to any state statute would be nice) If he has not committed a crime, do you let him drive away with the million dollars?

    My understanding is that normal criminal forfeiture would usually apply, the money being seized as evidence in the course of an arrest. I am not a lawyer, much less a member of the New Mexico bar, but when the federal government put in the mandate that banks provide reports on cash transactions above $10,000 I seem to remember a flurry of me-too provisions that make the carrying of larger sums by itself grounds for suspicion, cavity searches, and temporary detention. In the meantime, finger prints get checked for open warrants and the like. And, after all, for a confession like that applicable warrants and expedition requests can appear quicker than the release deadline.

    Of course, if a professional courier were carrying a million dollars, it would be concealed where it would not be uncovered in a typical traffic stop search, even with reasonable suspicion.

    And you need all this free legal advice because?

    No, it would not apply. No crime has been committed in New Mexico. The money would go to purchase more children (probably poor illegals crossing the border that no one would miss) and selling them into sexual slavery.

    Let’s so stipulate. What is there to stop a committed civil servant from sharing said story and the car registration with officials in Texas and California and the FBI?

    And does this apply even if there is an open warrant in another jurisdiction?

    It is hard to believe that all it takes is a simple law school hypothetical for people to abandon all civil discourse.

    I withdraw the statement, judge.

    • #38
  9. user_189393 Inactive
    user_189393
    @BarkhaHerman

    Here’s a couple places to start: (watch the video)

    http://endforfeiture.com/

    http://www.washingtonpost.com/opinions/tim-walberg-an-end-to-the-abuse-of-civil-forfeiture/2014/09/04/e7b9d07a-3395-11e4-9e92-0899b306bbea_story.html

    • #39
  10. Cato Rand Inactive
    Cato Rand
    @CatoRand

    Awesome.  I missed this post but it’s great news.  Thanks Fred, for the shout out in TDS.  May this be a model for the nation.

    • #40
  11. Pathfinder1208 Member
    Pathfinder1208
    @Pathfinder1208

    Barkha Herman:Here’s a couple places to start: (watch the video)

    http://endforfeiture.com/

    http://www.washingtonpost.com/opinions/tim-walberg-an-end-to-the-abuse-of-civil-forfeiture/2014/09/04/e7b9d07a-3395-11e4-9e92-0899b306bbea_story.html

    Barkha, thanks for the article. If I may, I think that the article makes some very important points. “Charges were never filed, but Dehko had to fight in court to prove that his money was not being used in a criminal enterprise.” That is called due process. Mr. Dehko went through an administrative hearing that found that his assets were not related to criminal activity. Secondly, “Gonzolez was never charged with a crime, but he lost his cash, which he had intended to use to buy a refrigerated truck for a produce business.” Clearly there are other factors in this case that are unknown to us. For Gonzolez to “lose his cash” an officer would have to find that there is proof, beyond a preponderance of the evidence that the cash was associated with illegal activity. Next an administrative judge, almost always a defense attorney, would have to find that the state, while subjected to cross examination from Gonzolez’s defense attorney, proved that the cash was involved in illegal activity. Mr Gonzolez would then be able to refute the state’s burden of proof by introducing his own evidence of innocent ownership. Then an appellate court would have also refused to hear the case or find against Mr. Gonzolez after a second trial. These things do not happen if a person has even the slightest proof that they have legitimately earned the money. Lastly, the author states “In response to these abuses, I recently introduced the Civil Asset Forfeiture Reform Act, which would raise the level of proof of a substantial nexus to criminal activity that must be met before property can be seized.” This suggests that even the author is not in favor of doing away with Civil Asset forfeiture but merely reforming it. All of his suggestions are good ones. This area of law is in need of reform because of the rogue acts of a small minority. Fortunately, informed individuals such as the author of the Washington Post article don’t want to throw the baby out with the bathwater.

    • #41
  12. user_1032405 Coolidge
    user_1032405
    @PostmodernHoplite

    Having quickly scanned discussion postings thus far, I’m surprised to find that I am the first of the ricochetti to say this: SUSANA MARTINEZ FOR PRESIDENT!

    SB 560 is just the latest. She quietly demonstrates that she has the executive skills of a successful Governor, has won reelection as a (R) in a blue state, and continues the long and painful process of restoring good governance to a state long cursed by single-party rule.

    Furthermore, the simple fact that she seems not to WANT the job of President strikes me as being proof that she is the best choice.

    Martinez should be leading the ticket: Not a VP nod; not “wait until 2020”; Martinez in 2016.

    (And now, I will go back to my tilting at windmills…)

    • #42
Become a member to join the conversation. Or sign in if you're already a member.

Comments are closed because this post is more than six months old. Please write a new post if you would like to continue this conversation.