Cooper: U.S. Supreme Court, state eye civil forfeiture

One of the results of the civil asset forfeiture bill sponsored by state Rep. Mike Carter and state Sen. Todd Gardenhire in the state legislature last year is that having cash itself is not a crime.

We'd like to believe the Tennessee legislature was a little bit ahead of the United States Supreme Court on the subject of civil forfeiture.

Specifically, two Chattanooga area legislators were ahead of the high court.

On Wednesday, a unanimous Supreme Court ruled that the Constitution's ban on excessive fines applies to the states.

The ruling was interpreted by many as a chink in the armor of the nationwide abuse often seen in civil forfeiture.

A year ago, state Sen. Todd Gardenhire, R-Chattanooga, and state Rep. Mike Carter, R-Ooltewah, were in the midst of pushing legislation in the Tennessee General Assembly that, in the case of civil forfeiture, required a quick, formal notice of a forfeiture-warrant hearing, spelled out the responsibility of a seizing agency found to be in the wrong, better defined the legal process of those charged in seeking the return of property not involved in the commission of a crime, and declared that having cash itself is not a crime.

The legislation passed both houses unanimously and later was signed into law by then-Gov. Bill Haslam.

"The whole purpose," Carter said at the time, "is to slow down the seizing authorities to make sure they're willing to put their pocketbook and their wallet behind their action. No more willy-nilly seizures."

On Thursday, he said the bill and the court case "are similar but dramatically different." However, both are "certainly an indication of a restriction [on civil forfeiture], certainly not an expansion."

In committee testimony about the bill last year, a Knoxville attorney told of the police stop of a woman suspected of drunk driving. She was arrested and charged with possession of prescription drugs for sale, and police seized $11,000 in cash.

However, the prescription drugs turned out to be over-the-counter antacid medication, and the cash had come from the just settled estate of the woman's late mother, the attorney said.

A judge dismissed the criminal charges against the woman, but she had difficulty getting back her money through the state's administrative law process.

Coincidentally, the Timbs v. Indiana case that wound up in the Supreme Court had similar notes. The plaintiff, Tyson Timbs, was arrested for selling about $400 worth of heroin. At the time, law enforcement seized his $40,000 Land Rover.

Eventually, the Indiana man pleaded guilty to the crime, which carried a maximum $10,000 fine, but faced no jail time. But he was without the Land Rover, which he bought with money he received from a life insurance policy after his father died.

The unanimous Supreme Court, in an opinion written by Ruth Bader Ginsburg, said governments issue fines "out of accord with the penal goals on retribution and deterrence" in many cases because the fines are a source of revenue.

In recent decades, law enforcement agencies have ramped up their use of civil forfeiture. Critics call it "policing for profit," though such agencies reject such names and defend the practice by saying such seizures deprive suspected criminals like drug traffickers of assets that law enforcement agencies in turn can use to help fund future operations.

"We've taken a dramatic shift against forfeiture assets [of those not guilty of a crime]," Carter said of the state bill, which went into effect Oct. 1 of last year. But if people are arrested, "it's had very little effect."

Some police are still angry with him, but he said there is a distinction. "I'm not for eliminating civil asset forfeiture," he said, "but you've got to prove [the individual whose assets were seized] is a crook."

The Carter-Gardenhire legislation and the Supreme Court case drew strange bedfellows.

In Tennessee, the bill was supported by both the libertarian Beacon Center and Americans for Prosperity-Tennessee on the right and the American Civil Liberties Union on the left. In the Timbs case, the plaintiff had the support of liberal groups concerned about police abuses and conservative organizations who don't like excessive regulation.

Lawmakers haven't spoken the last word on civil forfeiture in Tennessee, either. Indeed, state Rep. Martin Daniel, R-Knoxville - who has worked on civil forfeiture issues for years - has a bill before the legislature that, among other things, prevents state law enforcement agencies from going around state law by handing over seized property to federal agencies.

Carter has some difference with the bill, which is expected to be put back on the legislative calendar soon, but is hopeful something can be worked out that would allow him to support it.

In general, we believe law enforcement agencies should be able to seize whatever is lawful when the seized property can be tied to the commission of a crime, and that such crimes be prosecuted to their fullest extent, but we think it's only fair that seized items not used in a crime be returned to their owners and that the process for that return be speedy and expedient.