Hagan: The Red Queen’s justice

Robert Hagan
New Mexico News Services

Albuquerque is flouting state law by seizing vehicles of suspected drunk drivers, a practice banned in New Mexico since July 1, according to a lawsuit filed by Sen. Lisa Torraco, R.-Albuquerque, and Sen. Daniel Ivey-Soto, D-Albuquerque, earlier this month.

New Mexico

Santa Fe, Las Cruces and Rio Rancho have similar programs, while Roswell has a more narrowly-tailored seizure ordinance.

Unlike criminal law, under which prosecutors must first prove the accused guilty, civil forfeiture allows law enforcement to seize vehicles, cash and other assets on suspicion the owner has committed a crime. The owner may not even be charged or indicted, much less tried or convicted, but instead must prove his innocence to recover the property.

Putting the burden of proof on the accused turns due process on its head. It’s the Red Queen’s justice, straight out of Alice in Wonderland: “Sentence first, verdict afterwards.”

The bill banning civil forfeiture sailed through the 2015 legislative session unopposed, propelled by a covert video that caught a city attorney indiscreetly enthusing over the lucrative possibilities of the tactic. The reformed law earned libertarian praise as “best in the nation,” four words that rarely appear in the same sentence as “New Mexico.”

But the state ban “only applies to seizures and forfeitures done under laws that specifically apply the New Mexico Forfeiture Act,” according to Albuquerque City Attorney Jessica Hernandez, and the city’s anti-DWI measure is a “nuisance abatement ordinance.”

Whatever you call it, if it looks like a duck and quacks like a duck, it’s a fowl, according to Ivey-Soto. “It’s a simple geography question,” he said. “The law says ‘only criminal forfeiture is allowed in this state.’ Is Albuquerque in New Mexico? Last time I checked, it was.”

Predictably, Albuquerque Mayor Richard Berry was quick to seize the moral high ground — a reflexive response among today’s pols.

“Our ordinance is narrowly tailored to protect the public from dangerous, repeat DWI offenders and the vehicles they use to commit DWI offenses, placing innocent citizens' lives and property at risk,” Berry said in a prepared statement.

So if you’re against the cops taking some (alleged) drunk’s pickup without those pesky safeguards embedded in the Bill of Rights, you must be in favor of drunk driving.

That could be why Attorney General Hector Balderas, the state’s chief legal officer, has yet to venture an opinion on the issue. Another state legislator asked the AG for his take on Rio Rancho’s ordinance back in May, but Balderas is still chewing on the question. No aspiring governor wants to risk being painted as a friend to drunk drivers.

As a society, we’re increasingly eager to justify the means based on the urgency and critical importance of the desired ends. When that old letter from Dead White Males we call the Constitution stands in the way, we’re quick to seek some end-run around those antiquated rules to meet the perceived needs of the moment.

Brad Cates, a former state legislator and federal prosecutor who ran the federal asset forfeiture program back in the 1980s, would like to see civil forfeiture cut back closer to its roots in admiralty law, when it was used to combat smuggling, slave-trading and piracy on the high seas.

“We have rights as citizens of the state of New Mexico and the United States of America,” Cates said. “We have the right to be secure in our ‘persons, houses, papers, and effects, against unreasonable searches and seizures.’ Everyone agrees that we have a problem with DWI in New Mexico, and we need to address that problem. But skipping by the Constitution is not the way to do it.”

Bob Hagan is a columnist for The New Mexico News Services.