Posted on 05/14/2005 8:14:50 AM PDT by elkfersupper
Fool me once, shame on you. Fool me twice, shame on me.
What about the fifth time?
On four separate occasions during Martin Chávez's two terms as Albuquerque mayor, the ACLU has raised serious, well-substantiated concerns about the constitutionality of the mayor's pet legislative projects.
First, there was the 1999 teen curfew ordinance. Then there were two radical sex offender laws and an anti-panhandling ordinance, all of which were touted as "the toughest laws of their kind in the country."
Four times we asked the mayor to reject these bills as unconstitutional, and four times he ignored us. Four times ACLU volunteer attorneys went to court and convinced judges to strike down the ordinances or to so thoroughly overhaul them that now only shells of the former laws remain.
Now comes a fifth time, in the form of a DWI law that empowers the city to take away a person's automobile for a first-time DWI arrest— not a conviction, just an arrest.
Recall that in this country the Constitution guarantees people the chance to prove their innocence in court before suffering the government's punishment.
Due process of law is not just a bureaucratic technicality, it's the basis of our legal system.
The ACLU does not condone drunk driving, but neither does it agree with the city that everyone arrested for DWI is guilty of the charge. Among other things, Breathalyzer tests have significant error rates, and studies find that even experienced police officers cannot smell a person's breath and determine his or her level of intoxication more accurately than random guessing.
Nevertheless, these are the bases on which the city claims the right to deprive you and your family of your car— a harsh punishment indeed in a town with such a feeble public transit system.
For a $50, nonrefundable fee, you can request an administrative hearing before a city official, hand-picked by the mayor, to determine whether or not the police officer had "probable cause" to seize the vehicle. But, again, the issue at question is not whether you were in fact drunk, but whether the police officer had some reason to think you were. If the hearing officer believes the seizure met that test, the city declares the car a "public nuisance" and begins proceedings to take the vehicle permanently.
Last weekend, the Albuquerque Police Department auctioned off $60,000 in seized cars, the proceeds of which went directly into the department's coffers. Is this why the city is so anxious to dispense with due process and streamline the seizure process?
The DWI ordinance illustrates a perversion of nuisance laws that the mayor and his legal advisers are using to circumvent the inconvenience of fair trials in a number of different contexts. The tactic appears in a recently signed ordinance that would declare vehicles public nuisances if they are videotaped running red lights by cameras perched on top of intersection stoplights. The City Council also is considering an "anti-cruising" ordinance that would declare cars public nuisances if they pass a designated point more than three times in two hours.
Under both the DWI and red-light ordinances, it's quite possible that people could be found innocent of the crimes with which they have been charged, yet still have their property taken from them. Conversely, a person could be found guilty and suffer two separate penalties (fines or jail time and property forfeiture) for the same crime— a phenomenon that the Constitution normally prohibits as "double jeopardy."
More worrisome yet is a growing police practice, condoned by city attorneys, of seeking nuisance abatement warrants instead of standard criminal warrants to search residential properties for evidence of criminal activity. These easy-to-obtain civil warrants are intended for the purpose of investigating unsafe housing conditions, but officers increasingly are using them to gain entrance to people's homes to randomly check for evidence of criminal activity. Under normal criminal procedure, such searches would require officers to have evidence that a specific individual had committed a specific crime. As of last February, two lawsuits had been filed against the Safe City Strike Force for these abusive practices.
In all likelihood, the ACLU will sue the city to stop the implementation of what we believe to be an unconstitutional DWI law. This will be the fifth, and probably not the last time that we challenge one of Mayor Chávez's laws.
This pattern is unprecedented. Never in our 43-year history has the ACLU had to intervene so frequently in a single official's attempts to make law.
Despite his poor record against us, the mayor shows no sign of learning to consider constitutional rights before he signs bad laws. More than 1,000 hours of volunteer ACLU attorney time have gone into striking down and modifying the first four laws that we advised Mayor Chávez not to sign.
City attorneys have dedicated at least that amount of time to these efforts, and probably much more, given that they have to draft the bills to begin with. Albuquerque taxpayers should consider whether or not they are getting their money's worth.
Again, for the record, the ACLU does not favor drunk drivers. We favor convicting people before punishing them. It's only fair.
"The ACLU gets it right for once."
Gotta agree. All this seizure stuff is out of control. And the way it is done, a disgrace.
The op/ed piece doesn't mention it, but they can also call your house a nuisance, confiscate and sell it if the police department's "Party Patrol" find alcohol and minors there at the same time----adults / parents there or not.
I agree with this ACLU guy, overall (for once!). HOWEVER, I can't believe he is undercutting the case by the absurd statement, above. No one in our system has to prove his or her innocence -- innocence is presumed. The government has to prove a person guilty. That's not a minor distinction.
What's constitutional about the gun laws in Massachusetts, New York, or California?
I agree, but the people have allowed and encouraged this perversion.
There are a number of offenses for which you are guilty until proven innocent. Most notably, DWI, domestic violence, tax evasion.
Nothing I can see. It's mob rule facilitated by decades of disinformation.
Many years ago I said we were being put in a box and not allowed to come out. Our fear is our Government. It is out of control. This included the three branches of the feds right down to local townships. America is headed for another civil war and I don't like the battle groups. The most uneducated jacka@@ in America go for politics. We are being lawed to death.
Why did the mayor get re-elected if he's been screwing up since 1999?
The good news is the people who just want to be left alone have more guns. We're just not organized.
Democrat in a Blue area of a Red state. He's up for election again this October. He's running and will probably be reelected.
The first amendmant gives us the right to "peaceably assemble" - I just need to know where and when.
Waiting for the catalyst here, also. It's only a matter of time.
Even a blind squirrel finds an acorn every now and then. The ACLU gets it right for once.
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I agree but didn't SCOTUS allow Detroit or some Michigan governmental body to seize the car of a woman whose spouse was caught in engaging a hooker in said car. I think those were the basic fact and I found that one pretty outrageous and I thought clearly a taking without due process or compensation. But as I said, the way I remember it SCOTUS upheld the law?
They are wrong on this and have been wrong before. Remember Dred Scott? It took a civil war to straighten that one out.
Here is the citation to the michigan case I mentioned:
http://www.fear.org/bennis.html
and here is a page that has cites to several takings cases:
http://www.fear.org/sctcas.html
I tend to agree with you. I am only trying to provide you with information to further the discussion. It is shocking to me that the government could seize you property if someone uses it without your knowledge in a crime?
Thanks. I'm looking at your citations. Will have some more of my own to add later, if I can find time.
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