BY FREDA MIKLIN
On June 7, in response to a request from GV City Councilmember Libby Barnacle for an ordinance to “allow for the (GV) municipal court to order the forfeiture of vehicles used in street racing,” the Greenwood Village City Council passed a new law that allows the city to seize a private vehicle and keep it for up to a year if the city determines that it was used for street racing or any of five other illicit activities: 1) prostitution, including soliciting for prostitution, pandering and pimping, 2) human trafficking, 3) gang-related activity, 4) vehicular eluding or attempting to elude (a police officer), and 5) drive-by crime.
GV Assistant City Attorney Shannon Chambers-Nelson described the confiscation of vehicles under this law as “a new form of nuisance abatement,” for any vehicle involved in speed contests or speed exhibitions, or any of the other illegal activities.
Under the new law, Chambers-Nelson said, the GV city attorney’s office could “bring a restraining order before the GV municipal court for forfeiture of (a) vehicle for 30 days up to a year.” There is no district court or county court outside the City of Greenwood Village involved in this process. The action is considered “civil and remedial,” and “all issues of fact and law shall be tried to the Municipal Court without a jury.” There is no requirement that anyone who used the vehicle in committing the named offense need be convicted of that offense or any other infraction, including any traffic infraction, for the restraining order for the vehicle to be issued.
An action filed by the GV city attorney for a temporary restraining order (TRO) for the offending vehicle must be accompanied by a “written verified complaint.” The “summons, complaint, and temporary restraining order” must be sent by first-class United States mail to the owner of the vehicle at the address on file with the state Division of Motor Vehicles. Any lienholder must also be notified by first class U.S. mail. Alternatively, “the summons, complaint and temporary restraining order shall be deemed served by impoundment or detention of the motor vehicle.”
The new law provides opportunities for a vehicle owner who had no knowledge that the vehicle was being used as a public nuisance, or, “is using all reasonable efforts to abate the vehicular nuisance activities, and (it is expected) that those efforts are likely to abate the vehicular nuisance activities,” to avoid having his or her vehicle confiscated. In that situation, the owner can make their case and if they are successful in doing so, enter into a stipulation with the city to have the restraining order stayed.
City Councilmember Tom Dougherty noted that, if a vehicle was found to be a public nuisance and had not already been impounded, this process would require the owner’s cooperation to voluntarily relinquish it to the city. He asked what would happen if the owner said he/she didn’t know where the “offending” vehicle was located? Chambers-Nelson replied, “The TRO requires that they turn over the vehicle, the title, and I believe, the car keys. If they decided not to be compliant, we also have the contempt powers.” She continued, “Under the contempt powers, she (the GV municipal court judge) has the ability to do 180 days in jail and up to a $2,650 fine.”
After a vehicle is detained, the owner can request and receive a hearing and/or trial on the merits of the complaint in the GV municipal court, which will decide if the vehicle should continue to be detained or returned to the owner.
Once a vehicle that is found to be a public nuisance is detained and has been held by the city for the amount of time stated in the restraining order (30 days up to a year), the owner will be sent a letter by first-class mail saying that the vehicle can be released upon “payment of all towing fees, storage fees, and all actual expenses incurred by the City,” plus a civil judgment of $500. The owner must also execute an “unconditional release of the City of Greenwood Village and all of its employees and agents for the closure (detention of the vehicle) and any and all damages to said vehicle,” before he or she can get it back. The GV municipal court can reduce the impoundment and storage fees if it determines that they exceed the fair market value of the vehicle. If the owner doesn’t respond to the letter sent by first-class mail to his or her last known address by paying the fees and costs assessed to get the vehicle back or seeking a reduction in the amount owed, “the vehicle will be deemed to have been abandoned and disposed of.”
Dustin Varney, GV police chief, said this law would help his department “keep the city safer, keep the citizens safer,” and that it was “a reasonable, necessary, and judicious tool that we can use.” Councilmember Libby Barnacle said, “This is a highly useful tool to hit some of these criminals right where it counts,” adding, “From 2020 (until today) there have been 157 instances of eluding one of the GV police officers,” which endangers officers and pedestrians.
In response to a question from Mayor Pro Tem Dave Kerber, Chambers-Nelson explained that “vehicular eluding” is a class five felony that requires one to operate a vehicle “in a reckless manner to get away from law enforcement.” Simple “eluding,” she said, is a class two misdemeanor that occurs when a vehicle that an officer believes has violated the law receives a visual or audible signal to stop and “speeds up or extinguishes their lights,” to get away. Kerber pointed out that nothing in the new law prohibits a person from transferring ownership of their vehicle to another person after receiving a notice of the city’s intent to issue a TRO before that TRO is actually issued.
There was no mention in the staff report to the city council, nor was there any discussion after the new law was introduced and before it was passed, about why prostitution, pandering, and pimping were included in the law as reasons for a vehicle to be confiscated for up to a year.
The vote was unanimous in favor of passage, with Councilmember Barnacle announcing her vote as “a resounding yes.”