NASHVILLE — Tennessee law enforcement's power to seize cash, vehicles and other property from suspects never actually charged with a crime would face new restrictions under legislation moving in the General Assembly.
House Civil Justice Subcommittee members last week approved the measure, sponsored by the panel's chairman, Rep. Mike Carter, R-Ooltewah. The bill is named after former U.S. Attorney General Ed Meese, who helped Carter and Sen. Todd Gardenhire, R-Chattanooga, the Senate sponsor, shape the bill.
The bill is scheduled to be heard this week in the Senate Judiciary Committee. Carter said Meese, a senior fellow at the conservative Heritage Foundation, hopes it becomes model legislation that other states can look to when it comes to the nationally controversial practice known as civil asset forfeiture.
Critics on the left and right charge civil asset seizure practices are effectively resulting in "policing for profit," a description rejected by law enforcement officials who say the money is necessary to fuel operations and combat crime.
While the bill sponsored by Carter, a former Hamilton County General Sessions Court judge, doesn't do away with the practice, he told subcommittee members last week the bill makes a "fairly radical change" in cases where no criminal charges are actually filed.
Currently, most seizures are adjudicated by civil administrative law judges in the Tennessee Secretary of State's Administrative Procedures Division.
Under the bill, if someone is actually arrested by authorities for the commission of a crime, say transporting illegal drugs, the procedure "pretty much stays where it is," said Carter, noting the legislation does shorten procedural times and increase notices.
But the major part of the bill, he said, is that it makes legal distinctions between "those charged with a crime from those not charged with a crime."
"Those that have been accused of a crime and their assets are seized goes to the 'left' and those persons whose property was seized — and they were not present and apparently had nothing to do with it — go through entirely separate, far more strenuous due process requirements" before their property can be permanently taken, Carter said.
For persons who are not present but their property, such as a vehicle, is seized as a result of someone using it in commission of a crime like transporting drugs, "you have a great number of added, new due process rights in this bill," Carter noted.
Under the bill, if someone isn't arrested, the case must be held and concluded within 45 days. Official notice must be given within five days that the property has been seized.
Currently, a judge can hold an ex parte without requiring the presence of all of the parties to the controversy. But ex parte hearings disappear under the bill, Carter said, adding, instead there will be "an actual hearing on the merits which the state has the full burden of proof."
The bill also specifies that "money is not illegal," Carter said. He noted that while that may "seem silly to you," oftentimes when he was a judge "people would say, 'Look, we pulled a guy over in a '73 Dodge and he had $8,900 on him. It is not illegal to have money."
Under the bill, the state would have the "burden of proving the money is illegal," he said.
Carter said he believes the most important provision is that property owners not present at the seizure must be notified. And a "full-blown due process hearing" must be held, he noted.
If the property owner is notified and he or she fails to show up for the hearing, then a default judgment will be entered against the owner.
Other provisions allow attorneys to recoup some of their costs in defending clients against unjust seizures. There is a percentage cap and no reimbursements can exceed $3,000.
Carter credited Rep. Martin Daniel, R-Knoxville, with raising the issue by introducing yet another bill last year aimed at highlighting problems. The chairman also praised state Department of Safety and Homeland Security officials and heads of local law enforcement organizations for their willingness to talk.
"I think it's fair to say that no one likes the bill," Carter said. "Maybe that means it's good."
Long-standing complaints about innocent persons losing their property to police boiled over in Carter's subcommittee last year as the panel heard Daniel's bill cracking down on Tennessee law enforcement's property seizures.
It's an issue that has united civil libertarians on both the right and left.
At the 2017 hearing, 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 turned out to be over-the-counter antacid medication. The cash was from the recently settled estate of the woman's late mother.
Local prosecutors and police dropped the criminal drug charges, but the client had to fight for the return of her money through the state's administrative law process. Eventually, it was returned to the woman.
Delius also outlined another case where a West Virginia couple were forced to fight to get their car back after their child was arrested in Sevier County for marijuana possession.
Daniel last year 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, according to Daniel.
While thanking Carter for his work at last week's hearing, Daniel said he won't be supporting or opposing his bill.
"I believe that civil asset forfeiture is offensive to basic notions of property rights and due process," the Knoxville lawmaker said, adding he also objects to agencies involved in seizures being allowed to keep the assets.
Contact Andy Sher at email@example.com or 615-255-0550. Follow him ton Twitter @AndySher1.