Despite ruling, DWI seizures, auctions continue

ALBUQUERQUE (KRQE) – One-hundred-eleven cars and trucks flew off a South Broadway auction block on Saturday.

The proceeds went into the city of Albuquerque’s coffers through its controversial DWI seizure program.

It’s a process that has been going on in the city for more than a decade, bringing in millions of dollars the city has used for new police equipment and other tools in the ongoing fight against DWI.

But what made Saturday’s auction different was that it came on the heels of a series of recent court rulings that say the seizure program is unconstitutional.

Colin Hunter, one of several Albuquerque attorneys suing the city in a class-action lawsuit over the seizure program, says the city’s continued seizing of vehicles is “lawless.” He points to a ruling from state District Judge Clay Campbell in November — and another earlier this month — as “unambiguous” proof that the city is breaking the law.

Campbell’s Feb. 4 ruling says, in part, that the “city’s forfeiture ordinance was unconstitutional on its face and as applied” in the case of one man whose vehicle was seized.

But on Saturday, the show went on at the Manheim Auction house on the 3400 block of Broadway Southeast.

“APD’s vehicle seizure program is a classic, textbook example of policing for profit,” said Colin Hunter, one of several Albuquerque attorneys who are suing the city in a class-action lawsuit over the seizure program. “It’s fundamentally flawed because the people who benefit from seizing, forfeiting and selling people’s vehicles are the same people doing the seizing, selling and forfeiting, which creates a perverse incentive for abuse and for over-reach.”

Assistant City Attorney Greg Wheeler has a diametrically different take on the program — and on the various court rulings that have come since November.

He says it’s in the best interest of Albuquerque citizens to take vehicles away from repeat drunk drivers. And the city, he says, has no intention of halting the program.

The city sought a stay from the state Supreme Court after Campbell’s initial ruling in November. The high court denied the request, but left a ray of light for the City Attorney’s Office.

“The November 22, 2013 opinion and order of District Judge Campbell was limited to the constitutionality of the automobile seizure in this one case, for which the city has an adequate remedy of appeal in the ordinary course, making a writ of superintending control unnecessary and inappropriate … ” the ruling says, in part.

Wheeler said that means the Supreme Court has given the city its blessing to continue seizing and selling vehicles from suspected drunk drivers.

“As we sit here, there’s no order that says that the city has to stop with the DWI forfeiture program,” he said. “I think we go full bore, saying: ‘We’re good to go.’

” … until we get a decision from a District Court judge enjoining the program in its entirety, which we’ve not received, then our instructions are to continue to go forward.”

The city has appealed Campbell’s initial ruling, which the judge issued Nov. 22, to the state Court of Appeals. And in addition to seeking relief from the state Supreme Court for the November ruling, city officials also asked Campbell to reconsider.

That prompted Campbell’s ruling earlier this month. Following that ruling, the city went again to the state Supreme Court. Again, the high court denied the city’s request for a stay — this time, on Feb. 10, on a unanimous vote of 5-0.

Wheeler said he interprets the Supreme Court’s second denial as another victory for the city.

“We took it to the Supreme Court again, and the Supreme Court said: ‘No, we really meant what we said, and (the seizure program) is only unconstitutional in one case,’” he said. “Period.”

There’s no question the seizure program has been a money-maker for the city. Since 2007, APD has seized nearly 14,000 vehicles from suspected drunk drivers. More than a third of those have been sold at auction.

The city’s cash registers have rung to the tune of more than $7 million in total revenues during that time. The money goes back into the seizure program and toward other things in the city’s fight against DWI such as newspaper ads, police cars and DWI enforcement training for officers.

Wheeler said it’s not about the money, though.

“We think it’s about saving lives, not money,” he said.

However, Wheeler concedes that the city could be on the hook for large sums in damages if Judge Campbell’s ruling stands on appeal.

“If we lost on appeal, there would be some exposure to the individuals whose cars we have, there would be some exposure in … attorneys’ fees because it would be a civil rights violation that had been alleged,” he said. “Yes, there would be exposure, but we don’t think that’s as great an exposure as the public would be exposed to these folks keep driving  the car the sixth, seventh, eighth time after they’ve been convicted.”

Attorney Hunter says it’s a cash grab by the city — one that flies in the face of clear court rulings.

“The city knows full well that they continue to seize, forfeit and sell vehicles in violation of the U.S. Constitution,” he said. “No respect for District Court opinions … and just thumbing their nose at the Supreme Court.”

No timetable has been set for the city’s appeal.

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