State Rep. Martin Daniel, R-Knoxville has proposed a new law that, if enacted, would change Tennessee’s civil forfeiture laws.
Specifically, the proposed law would require that local district attorneys general review the underlying circumstances of a seizure to determine if probable cause exists to justify forfeiture.
When appropriate, the law requires that he or she “file a motion to dismiss the application for forfeiture warrant, upon which the court shall dismiss the application and return the seized property.”
As The Tennessee Star reported last year, a State Advisory Committee to the U.S. Commission on Civil Rights said Tennessee’s civil forfeiture laws remain among the least protective of property owners in the nation.”
Daniel told The Star that civil asset forfeiture in Tennessee “has gotten out of hand.”
“We need to impose safeguards to ensure innocent persons are not swept up in this effort. We can do that by making sure law enforcement is subject to Tennessee law and limit their ability to hand the matter off, via the equitable sharing process the federal government allows,” Daniel said.
According to Recuro.org, a federal program known as “Equitable Sharing” “allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government through a process known as adoption.”
“The DOJ directive reiterates full support for the equitable sharing program, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future,” the website went on to say.
“Law enforcement agencies can circumvent more strict state forfeiture laws by claiming cases are federal in nature. Under these arrangements, state officials simply hand cases over to a federal agency, participate in the case, and then receive up to 80 percent of the proceeds. However, when states merely withdraw from participation, the federal directive loses its impact.”
Daniel said the state can increase the burden of proof law enforcement must show in civil proceedings from a preponderance of the evidence — which means the state must show a preponderance of the property is associated with illegal activity, a mere 51 percent margin.
“We increase that to clear and convincing evidence, which most people agree is a 75 percent margin,” Daniel said.
“We want the criminals to forfeit their assets, but due process is the main thing we are concerned about regarding innocent people.”
“Passage of HB340/SB362 would build on reforms signed into law last year by (former) Gov. Bill Haslam,” according to Recuro.org.
“Under intense law enforcement opposition, the Republican-controlled legislature killed a bill featuring more robust provisions that would have required a conviction before proceeding with forfeiture.”