Tennessee civil asset forfeiture law is under legislative microscope

Tennessee civil asset forfeiture law is under legislative microscope

March 5th, 2017 by Andy Sher in Politics State

Todd Gardenhire

Photo by Angela Lewis Foster /Times Free Press.

Representative Mike Carter, Tennessee-R, addresses the crowd gathered at the Hamilton County Department of Education on Tuesday.

Representative Mike Carter, Tennessee-R, addresses the crowd gathered...

Photo by C.B. Schmelter

NASHVILLE — Legislative critics of Tennessee's civil asset seizure law are renewing their push to alter the statute, which allows police to seize money and property from suspects even if they're not convicted or even charged.

Civil libertarians on both the right and left contend the law has harmed the innocent and amounts to unregulated "policing for profit."

But Tennessee law enforcement officials and prosecutors defend the law, saying problems involving innocent persons are rare. They argue the millions of dollars brought in annually through confiscations support anti-drug efforts by the 31 local drug task forces.

For Sen. Todd Gardenhire, R-Chattanooga, who is sponsoring the Senate bill to rein in the practice, the problem is crystal clear.

In this Dec. 10, 2014 photo, state Rep. Martin Daniel, R-Knoxville, attends a House GOP meeting in Nashville, Tenn. Daniel on Thursday, March 17, 2016, defended his comments that free speech rights on Tennessee college campuses should apply to everyone, even recruiters for the Islamic State group. Daniel had been challenged about the impact of his proposed "Tennessee Student Free Speech Protection Act" in a committee hearing a day earlier. (AP Photo/Erik Schelzig)

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Photo by The Associated Press/Times Free Press.

"The ends don't justify the means," the senator said. "We can't keep doing that to our citizens who are innocent of a crime."

For instance, he said, if a teen is stopped by police in his parents' car and the officer finds contraband, the parents might lose their vehicle or have to pay fees to get it back.

Both pro and con views were on full display last week during a heated hearing in the House Civil Justice Subcommittee, chaired by Rep. Mike Carter, R-Ooltewah.

It went on for nearly 2 1/2 hours, so long that final action was postponed for two weeks.

Rep. Martin Daniel, R-Knoxville, sponsor of the House companion bill, said the current asset forfeiture law "results in a distortion of priorities, potentially prioritizing profits and budgets above the individual property rights of our citizens."

Daniel said Tennessee had 7,616 civil asset forfeiture proceedings in 2016 and law enforcement seized more than $17 million in cash and 3,636 vehicles.

The total for 2009-14 was a reported $85.9 million, Daniel said. And that's not counting $26 million shared with state and local law enforcement from 2009-13 by the U.S. Justice Department from and property seizures.

It's a due-process issue as well, he said. Even if a person isn't convicted it can take many months and much money in legal fees or "settlements" to reclaim seized assets.

Most of the money stemmed from drug-related cases, sometimes huge amounts in a state with major east/west and north/south interstates.

But Lee Tramel, assistant chief in the Knox County Sheriff's Office, told the House panel the process works well and helps in the fight against epidemic drug trafficking.

"Any tool in the toolbox that we have to fight these people with, we need it," Tramel told the subcommittee.

Carter, a former Hamilton County General Sessions Court judge, has twice carried bills on the seizure controversy. Both were collaboratively pushed by groups including the American Conservative Union and American Civil Liberties Union, a liberal group. That's happening this year as well.

Earlier, Knoxville attorney Brian Delius described the process that one client went through in 2014 when she was stopped by Sevierville police for suspected drunken driving.

She was charged with possession of prescription drugs for sale, and police seized $11,000 in cash. Delius said the "prescription" drugs were over-the-counter antacid medication, and the cash was from the recently settled estate of the woman's late mother.

Local prosecutors and police dropped the drug charges, but the client had to fight for the money because the forfeiture process goes through the state Department of Safety and Homeland Security and administrative law judges.

Eventually, the woman got her money back, he said.

Delius also described another case where a West Virginia couple fought to get their car back after their child was arrested in Sevier County for marijuana possession.

Police acted appropriately, Delius said, adding, "It's just the system that's broken." In Delius' view, the system takes decisions from local police and locally elected judges, who are best positioned to have the full facts yet don't have authority to return money or property.

Roger Hutto, general counsel for the Department of Safety, said the current civil forfeiture process was largely put in place by the General Assembly in 1994.

The law says after local judge signs forfeiture warrants, civil asset seizures are handled by the Safety commissioner while the local judge focuses on any criminal prosecution.

Hutto said the state's Uniform Procedures Act allows for innocent property owners to pay fees to retrieve their seized property.

"Settlements are encouraged, just like when you got to General Sessions Court," he said.

Hutto said confiscated cash and proceeds from taken property are directed by statute for drug enforcement and education.

Terry Ashe, a former Wilson County sheriff and executive director of the Tennessee Sheriffs' Association, later told the panel that "one thing has been left out" of all the criticism.

"It's about how many criminals we're actually arresting," Ashe said, adding most of the preceding arguments had involved a relatively few cases.

"Bad cases make bad law," Ashe said, arguing problems are few. "I just ask you not to take one bad case."

Tennessee's drug task forces are overseen by local district attorneys general. One provision in the Daniel/Gardenhire bill would take forfeiture proceeds, which are distributed to local drug task forces, and put them into state and local government general funds to be appropriated, rather than under law enforcement control.

That idea drew concerns from District Attorney General Stephen Crump of the 10th Judicial District, which includes Bradley, McMinn, Monroe and Polk counties in Southeast Tennessee.

Crump said he does his job "for the sole reason of justice." Having to appear before local county commissions to argue for "pieces of the budget" to fund drug task forces or tell law enforcement what they can or can't have for their budgets will result in a "lack of confidence in all of us," the DA fretted.

"The civil forfeiture is imperfect because people run it," Crump said, arguing that despite cases like Delius' client, there are few instances of problems.

Still, Crump had his own story about a case where he believes justice went awry. It involved a man whose vehicle was confiscated when he was arrested with 8 ounces of methamphetamine.

The man was convicted and set to prison, Crump said, yet a state administrative law judge ruled he should get his property back.

Contact Andy Sher at asher@timesfreepress.com or 615-255-0550. Follow on twitter at AndySher1.