Proposed Reforms of Civil Asset Forfeiture in Tennessee to Be Heard This Week in House Subcommittee

A bill that will make several changes to Tennessee’s civil asset forfeiture procedures will be heard in the Civil Justice Subcommittee of the House Judiciary Committee on Tuesday.

House Bill HB 0340, sponsored by Representative Martin Daniel (R-Knoxville), is yet another attempt by the legislator to make the State’s laws more protective of the due process of law and the rights of innocent property owners when it comes to civil asset forfeiture. Daniels sponsored HB 0421 in 2017 where it passed out of the House Civil Justice Committee, but not getting out of the House Criminal Justice Committee, continued into 2018 before its progress was halted by being “taken off notice.”

Civil asset forfeiture is a law enforcement tool that permits private property to be seized and retained if it is suspect that it may have been involved in criminal activity without the requirement of a conviction or even criminal charges.

In a statement to The Tennessee Star, Representative Daniels said his bill as it stands now will do three things:

• Require the local district attorney general to examine the facts underlying each seizure and, if the facts do not reveal that the property was taken per probable cause to connect the property to a crime/criminal activity, the district attorney may file a motion to dismiss the case;
• Close the “equitable sharing” loophole to prevent Tennessee law enforcement agencies from circumventing state law by handing the seized property over to Federal agencies for processing under their federal laws which may not have the same due process protections;
• Increase the burden of proof that must be shown to connect the property to a crime from a mere preponderance of the evidence – 51 percent likelihood – to a showing of clear and convincing evidence – 75 percent likelihood.

Daniel said that he also has an amendment to offer which would eliminate the bond that must be posted by an owner of property who wants to “recover” their seized property from law enforcement. Daniel explained further that the required bond to recover assets is $350 and that Tennessee is one of just three states with such a requirement.

Daniel’s bill addresses some of the concerns raised in a 58-page February 2018 Report (“Report”) of the Tennessee Advisory Committee (“Committee”) to the U.S. Commission on Civil Rights, “The Civil Rights Implications of Tennessee’s Civil Asset Forfeiture Laws and Practices.”

According to the Report, “The use of civil forfeiture in Tennessee has been the subject of recent and well-documented misconduct, including substantial unauthorized spending of forfeited funds by the Tennessee Department of Safety and Homeland Security.”

In the Letter of Transmittal that accompanied the Report, it states “Tennessee’s civil asset forfeiture law lacks many procedural safeguards that are commonplace in other states.”

The Letter goes on, “The Committee also found that in practice, Tennessee’s civil forfeiture law raises important concerns about the disparate impact that forfeitures can have on low-income individuals and communities of color.”

Indeed, civil forfeiture reform has found bi-partisan support in states such as Mississippi and South Carolina, where it was called a “historic event.”

Some of the same arguments heard around the Tennessee General Assembly against reform are those that were cited in the National Review article, “Asset Forfeiture: Lessons from Mississippi.”

Proponents of the status quo say that restraining civil asset forfeiture in Tennessee will be welcoming to drug dealers.

Concern is also expressed about the funding loss to law enforcement agencies.

Tennessee Code Annotated 39-11-701 (b) states, “It is the intent of the general assembly, consistent with due process of law, that all property acquired and accumulated as a result of criminal offenses be forfeited to the state, and that the proceeds be used to fund further law enforcement efforts in this state.”

But, the Report includes testimony made by witnesses to the Committee as to the “perverse financial incentives” Tennessee’s asset forfeiture laws bring into to law enforcement decisions.

Tennessee law stipulates that forfeiture proceeds be used “to fund further law enforcement efforts,” as a restriction as to what the funds could be used for, not as direction for supplementing budget appropriations.

Daniels’ bill is scheduled to be heard in the House Civil Justice Subcommittee on Tuesday, February 19 at 4:30 p.m. by Representatives Bill Beck (D-Nashville), Michael Curcio (R-Dickson), Johnny Garrett (R-Goodlettsville), Dan Howell (R-Georgetown), Joe Towns (D-Memphis), Chairman Mike Carter (R-Ooltewah) and the bill sponsor himself.

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Laura Baigert is a senior reporter at The Tennessee Star.