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New Mexico's new protections for innocent property owners should not be weakened

07/06/2015

In its most recent session, the New Mexico Legislature passed a comprehensive bill aimed at protecting innocent property owners from government overreach. Prior to the passage of HB 560, the Land of Enchantment lacked significant protections for innocent property owners, which earned the state a "D+" from the Institute for Justice.

State and local law enforcement could seize property believed to be connected to a crime. Though the standard of proof -- "clear and convincing evidence" -- was higher than most states, the property owner, who may never even be charged with a crime, often had to prove the innocence of seized items to get their stuff back. There also existed a perverse profit motive under New Mexico civil asset forfeiture law because the seizing agency could keep 100 percent of the proceeds from forfeitures.

Law enforcement could also get around state law by working with federal agencies and seize property under federal civil asset forfeiture laws, which requires only a "preponderance of evidence" -- a much lower standard of proof -- to forfeit property. The seizing state or local law enforcement agency could send seized property to the federal government for "adoption" and receive up to 80 percent of the proceeds through the Justice Department's Equitable Sharing Program. In FY 2014, New Mexico law enforcement agencies received nearly $3 million in equitable sharing payments.

The way some looked at New Mexico's civil asset forfeiture laws was frightening. Harry S. Connelly, Jr, the city attorney for Las Cruces, New Mexico, was captured on film at a seminar in September calling items that could be seized through civil asset forfeiture "little goodies." He bragged about the unchecked power that the civil asset forfeiture gave governments. "We could be czars," he said. "We could own the city. We could be in the real estate business." Connelly framed a civil asset forfeiture complaint as a "masterpiece of deception."

HB 560 restores the presumption of innocence. It eliminates civil asset forfeiture, requiring a criminal conviction before the government can forfeit property connected to a crime. An October 2014 poll conducted by Rasmussen Reports found that 70 percent of Americans believe that a criminal conviction should be required before a government can take property. To address the perverse profit motive often behind seizures, HB 560 directs the proceeds to the state's general fund. The bill also restricts the transfer of seized property fromto the federal government, preventing circumvention of protections in the bill, unless the value of the seized property exceeds $50,000.

The bill unanimously passed both chambers of the New Mexico Legislature -- quite a feat considering that Republicans control the House and Democrats hold the Senate. With just minutes left on the clock before an automatic pocket veto, Gov. Susana Martinez (R-N.M.) signed HB 560 into law. Over 72 hours, FreedomWorks activists drove some 5,000 calls Gov. Martinez's office urging her to sign the bill.

New Mexico now has the strongest civil asset forfeiture laws in the country, according to a recent FreedomWorks publication, Civil Asset Forfeiture: Grading the States.

HB 560 took effect on July 1, and law enforcement is beginning to push back against the new protections for innocent property owners. Though no law enforcement officials testified against the bill when it was working through the legislature, they unsuccessfully tried to lobby Gov. Martinez for a pocket veto. But now that the bill is in effect, though for less than a week, the New Mexico-based Daily Times reports that state and local law enforcement agencies are warning that the protections for innocent property owners could impact their budgets.

State Rep. Rod Montoya (R-Farmington) believes that people should be convicted of a crime before their property is seized by the government, but is open to changes to the new law. "If this is going to affect them this adversely, we need to take a look at it," said Montoya. "I'm not suggesting repeal." But it is clear that law enforcement wants substantial changes that could undermine the strength of the protections.

Law enforcement, for example, appears to want change the direction the proceeds flow, diverting them away from the state's general fund back into their coffers, as it was before the HB 560 became law. Law enforcement, of course, should be fully funded so they can protect and serve the public, but those monies should come from local governments and the state legislature, not through proceeds from forfeitures. Because of the profit motive involved, law enforcement has developed a tendency to self-fund through civil asset forfeiture, which can be a distraction from their primary duty.

It is also suggested that state and local law enforcement may take aim at the restrictions on using federal forfeiture law through adoptive seizures. All of the elements of HB 560 are important, but the part of the bill closing the federal loophole prevents law enforcement from circumventing the protections for innocent property owners. Without those protections, people who are never charged with a crime would have to fight seizures in federal courts, where they must prove their property's innocence.

The New Mexico Legislature and local governments should address the funding needs of law enforcement through the budgetary process. That is how the process is supposed to work. HB 560 -- which is the "gold standard" of civil asset forfeiture reform and a model for other states considering substantive changes to their laws -- should not be altered.