Harjo v. City of Albuquerque

• Decision Date: 28 July 2018
• Docket Number: CIV 16-1113 JB/JHR
• Citation: 326 F.Supp.3d 1145
• Parties: Arlene HARJO, Plaintiff, v. CITY OF ALBUQUERQUE, Defendant.
• Court: U.S. District Court — District of New Mexico

326 F.Supp.3d 1145

Arlene HARJO, Plaintiff,

v.CITY OF ALBUQUERQUE, Defendant.

CIV 16-1113 JB/JHR

United States District Court, D. New Mexico.

Filed July 28, 2018

Arash Kashanian, Law Offices of Arash Kashanian, Albuquerque, New Mexico and Charles Brad Lane Cates, Law Offices of Charles Brad Lane Cates, Fairacres, New Mexico and Justin Pearson, Institute for Justice, Miami, Florida and Robert Frommer, Robert Johnson, Institute for Justice, Arlington, Virginia, Attorneys for the Plaintiff

Jeffrey Butler Driggers, Kyle Jordan Hibner, Eric Jon Locher, Philomena M. Hausler, Assistant City Attorneys, City Attorney's Office, City of Albuquerque, Albuquerque, New Mexico and Jerry A. Walz, Walz and Associates, Albuquerque, New Mexico, Attorneys for the Defendant

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGETHIS MATTER comes before the Court on: (i) the Plaintiff's Motion for Partial Summary Judgment and Supporting Memorandum, filed October 16, 2017 (Doc. 67)("MSJ"); (ii) the Defendant's Motion and Supporting Memorandum to Strike Declaration of Joseph T. Gardemal III in Support of Plaintiff's Motion for Partial Summary Judgment, filed October 30, 2017 (Doc. 73)("Motion to Strike"); and (iii) the Plaintiff's Motion for Modification and/or Reconsideration, filed April 27, 2018 (Doc. 97)("Motion"). The Court held a hearing on June 13, 2018. The primary issues are: (i) whether the City of Albuquerque's forfeiture attorneys and enforcement personnel have an unconstitutional institutional incentive to seize cars and prosecute forfeiture actions; (ii) whether the City of Albuquerque's forfeiture officials -- enforcement personnel, prosecutors, and administrative law judges -- have an unconstitutional personal incentive to seize cars, prosecute forfeiture actions, and conclude that vehicles are forfeiture eligible; (iii) whether the City of Albuquerque's forfeiture program¹ violates the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States of America by placing the burden of proof on vehicle owners to prove that they have a right to keep their property; and (iv) whether the Court should strike the Declaration of Joseph T. Gardemal III (dated October 9, 2017), filed October 16, 2017 (Doc. 67-2)("Gardemal Decl."), as an improper expert opinion. The Court concludes that the City of Albuquerque has an unconstitutional institutional incentive to prosecute forfeiture cases, because, in practice, the forfeiture program sets its own budget and can spend, without meaningful oversight, all of the excess funds it raises from previous years. Thus, there is a "realistic possibility" that forfeiture officials' judgment "will be distorted by the prospect of institutional gain" -- the more revenues they raise, the more revenues they can spend. Marshall v. Jerrico, Inc., 446 U.S. 238, 251, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980) (" Marshall").

Independent from the institutional incentive, the Court concludes that, viewing the evidence in the light most favorable to the City of Albuquerque, forfeiture officials have no unconstitutional personal incentive, because their salary is not tied to forfeiture revenue. Therefore, the possibility that they would feel pressured to prosecute more cases or hold for the City of Albuquerque to maintain their income is too remote to implicate due process. The forfeiture program, however, violates procedural due process, because owners have to prove that their cars are not subject to civil forfeiture. Finally, the Court will not strike the Gardemal Decl. because the Gardemal Decl.'s relevant portions contain factual statements that arise from admissible evidence. Accordingly, the Court grants the MSJ in part and denies it in part, denies the Motion to Strike, and grants the Motion.

FACTUAL BACKGROUND

The Court draws the factual background from the parties' undisputed material facts in their summary judgment motion papers. See MSJ ¶¶ 1-70, at 3-15; Defendant's Response in Opposition to Plaintiff's Motion for Partial Summary Judgment, ¶¶ 1-64, at 3-14, filed October 30, 2017 (Doc. 72)("MSJ Response"); Reply in Support of Plaintiff's Motion for Partial Summary Judgment, ¶¶ 7-60, at 3-6, filed November 13, 2017 (Doc. 77)("MSJ Reply"). While the parties dispute particular facts' materiality, there are few factual disputes. See, e.g., MSJ Response ¶¶ 4-5, 8, 14, at 3, 5.² The Court details those undisputed facts below.

1. The City of Albuquerque's Forfeiture Program.

The City of Albuquerque's motor vehicle seizure and forfeiture ordinance, see Revised Ordinances of Albuquerque ("ROA") §§ 7-6-1 to -7 ("Forfeiture Ordinance"), provides that a vehicle is "subject to immediate seizure and forfeiture ... if it is ... [o]perated by a person in the commission of a DWI offense" and the driver has at least one prior DWI arrest, summons, or conviction. MSJ ¶ 1, at 3 (citing ROA § 7-6-2(A) ). See MSJ Response ¶ 1, at 3 (not disputing this fact). The Forfeiture Ordinance also provides for forfeiture based on other violations, including any "felony offense" involving the "use of a firearm." MSJ ¶ 2, at 3 (citing ROA § 7-9-3). See MSJ Response ¶ 2, at 3 (not disputing this fact). If somebody other than the alleged offender owns the seized vehicle, the owner bears the burden to "demonstrate[ ] by a preponderance of the evidence that the owner ... could not have reasonably anticipated that the vehicle could be used" to commit the alleged offense. MSJ ¶ 3, at 3 (citing ROA § 7-6-7(A) ). See MSJ Response ¶ 3, at 3 (not disputing this fact).

Vehicles seized under the Forfeiture Ordinance "are brought for intake to the City's DWI Seizure Unit." MSJ ¶ 4, at 3 (citing Deposition of Shane Rodgers at 11:20-23 (taken August 2, 2017), filed October 16, 2017 (Doc. 67-8)("Rodgers Depo."); id. at 12:23-13:15). See MSJ Response ¶ 4, at 3 (not disputing this fact). The DWI Seizure Unit is housed within the City of Albuquerque Police Department and "consists of two uniformed officers and five civilian employees." MSJ ¶ 4, at 3 (citing Deposition of Donovan Rivera at 7:10-10:7 (taken May 17, 2017), filed October 16, 2017 (Doc. 67-11)("D. Rivera Depo.") ). See MSJ Response ¶ 4, at 3 (not disputing this fact). The DWI Seizure Unit works closely with the "City's Legal Department, where two city attorneys are assigned to handle vehicle forfeiture cases." MSJ ¶ 4, at 3 (citing Rodgers Depo. at 19:20-20:21; Legal Department Safe City Strike Force Division, at 1, filed October 16, 2017 (Doc. 67-20) ). See MSJ Response ¶ 4, at 3 (not disputing this fact).

When Pepe Hernandez, a DWI Seizure Unit employee, "conducts an investigation into [an] alleged drunk driver," his "investigation consists mostly" of electronic database searches. MSJ ¶ 5, at 3 (citing Rodgers Depo. at 13:10-12; D. Rivera Depo. 46:9-12; Deposition of Pepe Hernandez at 8:4-15 (taken August 2, 2017), filed October 16, 2017 (Doc. 67-13)("Hernandez Depo.") ). See MSJ Response ¶ 5, at 3 (not disputing this fact). As part of this investigation, Hernandez is responsible "for verifying that the seizure occurred inside the city limits." MSJ ¶ 6, at 4 (citing D. Rivera Depo. at 45:16-46:1). See MSJ Response ¶ 6, at 4 (not disputing this fact). "About once a year," Hernandez determines that a vehicle "is not subject to forfeiture because it was seized outside city limits." MSJ ¶ 6, at 4 (citing Hernandez Depo. 13:19-14:2). See MSJ Response ¶ 6, at 4 (not disputing this fact). There is "no type of different investigation if the vehicle is owned by somebody other than the alleged drunk driver." MSJ ¶ 7, at 4 (citing D. Rivera Depo. at 12:6-13).³ No one from the City of Albuquerque Police Department contacts the owner to "conduct an interview prior to proceeding with the forfeiture" and no one from that department "investigates to determine whether the owner might have a valid innocent owner defense." MSJ ¶ 7, at 4 (citing Rodgers Depo. at 15:2-16:10; Hernandez Depo. at 20:9-21:25).⁴

"When a vehicle is seized, the owner has ten days to pay a $50 fee to request an administrative hearing." MSJ ¶ 8, at 4 (citing ROA §§ 7-6-5(D), (F) ). See MSJ Response ¶ 8, at 3, 5 (not disputing this fact). If the owner does not request a hearing, which happens about sixty times a month, "the vehicle is deemed abandoned and sold at auction." MSJ ¶ 8, at 4 (citing D. Rivera Depo. at 35:21-24; Deposition of Lacresia Rivera at 20:3-18 (taken May 16, 2017), filed October 16, 2017 (Doc. 67-12)("L. Rivera Depo.") ). See MSJ Response ¶ 8, at 3, 5 (not disputing this fact). Vehicle owners may bid for their vehicles at auction -- even if the owner was the one driving the car when the offense occurred -- and "the City is aware that owners sometimes choose to buy back their vehicle rather than contest the forfeiture." MSJ ¶ 9, at 4 (citing Rodgers Depo. at 63:13-17; L. Rivera Depo. at 24:7-10). See MSJ Response ¶ 9, at 5 (not disputing this fact).

If the owner requests a hearing, "a city attorney conducts settlement negotiations with the owner or her representative" before the hearing. MSJ ¶ 10, at 4 (citing Rodgers Depo. at 19:20-20:3). See MSJ Response ¶ 10, at 5 (not disputing this fact). During settlement negotiations, the City of Albuquerque's forfeiture attorneys exercise "discretion about what kind of settlement offer to make." MSJ ¶ 10, at 4 (citing Rodgers Depo. at 21:11-22). See MSJ Response ¶ 10, at 5 (not disputing this fact). "City attorneys can offer a broad range of settlement terms," ranging from a $500 payment, with no boot requirement, "to a $5,100 payment and a requirement to boot the car for two years." MSJ ¶ 11, at 4 (citing D. Rivera Depo. at 42:13-43:6; L. Rivera Depo. at 35:4-10). See MSJ ¶ 11, at 5 (not disputing this fact). In making settlement offers, "city attorneys are guided by a matrix setting forth approved settlement offers for various circumstances," but those attorneys have discretion to part from the matrix. MSJ ¶ 12, at 5 (citing Rodgers Depo....