Tennessee Hearing on Asset Forfeiture Reform, Tuesday, Oct. 29, at Cordell Hull Building

By: Mike Maharrey, Tenth Amendment Center, NASHVILLE, Tenn. (Oct. 4, 2019) – Later this month, the Tennesse legislature’s Civil Asset Forfeiture Task Force will hold a hearing on asset forfeiture reform in the Volunteer State.
Rep. Martin Daniel (R-Knoxville) has spearheaded efforts to reform Tennessee’s asset forfeiture laws to require a conviction before prosecutors can permanently seize a person’s property. Last year, Daniel sponsored a House bill that would have created a process to determine whether there is probable cause before proceeding with asset forfeiture and close a loophole allowing state and local police to circumvent stringent state asset forfeiture laws by passing cases off to the feds.

In 2018, the Tennessee legislature passed modest reforms to the state asset forfeiture process, but it rejected more strict restrictions on the process under intense law enforcement opposition. The law now requires law enforcement agencies to provide formal notification within five days of a property seizure or of a forfeiture-warrant hearing. Authorities must provide notice whether or not the owner was present at the time the property was taken. The bill also requires the state to pay attorney fees if a person proves police wrongfully seized their property. Additionally, the stipulates that merely possessing large amounts of cash is not considered a crime.

Passage of the 2018 law created a foundation for activists in Tennessee to build on, and they have continued to push the issue forward. Those driving for reforms have set up a petition to support efforts. You can sign it HERE.

The Institute for Justice gives Tennessee forfeiture laws a D- and calls them “appalling.” Law enforcement only needs to tie property to a crime by a preponderance of the evidence – an extremely low legal standard – in order to forfeit it. Police can seize property without a conviction or even filing charges against the owner.

Any asset forfeiture reforms in Tennessee should include language to close a loophole that allows state and local police to get around more strict state asset forfeiture laws in a vast majority of situations. This is particularly important in light of a policy directive issued in July 2017 by then-Attorney General Jeff Sessions for the Department of Justice (DOJ).

FEDERAL LOOPHOLE
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.
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.

Until recently, California faced this situation. The state has some of the strongest state-level restrictions on civil asset forfeiture in the country, but state and local police were circumventing the state process by passing cases to the feds. According to a report by the Institute for Justice, Policing for Profit, California ranked as the worst offender of all states in the country between 2000 and 2013. In other words, California law enforcement was passing off a lot of cases to the feds and collecting the loot. The state closed the loophole in 2016.

The bill sponsored by Daniel last session included language that would close the loophole in most situations.

A local or state law enforcement agency, including a judicial district drug task force, shall not refer, transfer, or otherwise relinquish possession of property seized under state law to a federal agency by way of adoption of the seized property or other means by the federal agency for the purpose of the property’s forfeiture under the federal Controlled Substances Act, compiled in 21 U.S.C. § 801 et seq.
A local or state law enforcement agency, including a judicial district drug task force, or participant in a joint task force or other multijurisdictional collaboration with the federal government shall not accept payment of any kind or distribution of forfeiture proceeds resulting from a joint task force or other multijurisdictional collaboration unless the aggregate net equity value of the property and currency seized in a case exceeds one hundred thousand dollars ($100,000), excluding the value of contraband.

Very few cases exceed the $100,000 threshold.

As the Tenth Amendment Center previously reported the federal government inserted itself into the asset forfeiture debate in California. The feds clearly want the policy to continue.

Why?

We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its unconstitutional “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.

WHAT’S NEXT
The Civil Asset Forfeiture Task Force hearing will take place Tuesday, Oct. 29, at Cordell Hull Building (425 5th Avenue North) on the 1st floor, starting at 9 a.m. CST.

Rod's Comment: Civil Asset Forfeiture is an affront to democracy.  That the police should be able to confiscate your property without proving you committed a crime is unconscionable. This is the kind of authority police have in authoritarian police states.

If anyone is intending to attend this hearing, they should arrive early.  The meeting room will most likely be  packed with police officers in uniform advocated against any change.

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WSJ: Nashville Mayor’s Unorthodox Promise: Slow Corporate Handouts

City’s new leader wants to rethink costly incentives used to lure companies as residents complain about housing prices, traffic 

 
By John D. Stoll, Wall Street Journal, NASHVILLE— This city has been a poster child for economic development, the good and the bad.

Tax breaks and cash incentives have flowed. Tourists, sports teams and conventioneers have come. Hotels and restaurants have bloomed. And now Amazon.com Inc., among the most-sought-after employers, is erecting a pair of towers downtown to house 5,000 new employees, a move the company promises will “further the resilience, the vibrancy and just the overall coolness” of a place once known only for music.

With coolness comes clutter. I’ve been traveling here since my brother moved to Tennessee in 2004. Over 15 years, the population has grown by 19 people a day on average—from 588,512 residents in 2003 to 692,587 in 2018—as folks stream in to take jobs in health care, autos, banking and more.
Home prices rose; public services sputtered; traffic clogged. Growing pains are now as plentiful as the honky-tonks lining the city’s Broadway.
 ....
John Cooper, a 63-year-old real-estate developer, won Nashville’s recent mayoral race by nearly 40 percentage points, promising to curb the subsidies that lure big business. Skyscrapers and luxury housing developments are everywhere, yet city leaders can’t balance a budget.  (read more)

 

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State Board of Education overturns the decision of MNPS to revoke Knowledge Academy’s charter. Allegations not substantiated.

by Rod Williams - Knowledge Academies has three public schools in Nashville operating under charters from the Metro School Board. Charter schools are funded by taxpayers but run autonomously with their own board of directors.  Knowledge Academies have two middle schools and a high school.  Earlier this year the School Board found irregularities at the schools and voted to revoke the charters of the three schools. Alleged irregularities included unlicensed teachers and financial management issues.  The academies sometimes, it was alleged, had trouble making payroll and teachers were paid late.  It was alleged that the CEO of Knowledge Academies was running side businesses out of the schools at the same time that the schools had financial problems. Also, the complaint was that the schools were not academically performing very well.

Earlier this year when the problems came to light, the Knowledge Academies’ board took steps to address the problems.  The board fired the CEO and founder of the schools and hired the nonprofit Noble Education Initiative to run the schools. The MNPS charter schools office recommended placing Knowledge Academies on probation but instead the School Board voted to revoke the charter of the schools. Knowledge Academies appealed to the state.

The State found that MNPS was in error in revoking the charters and that many of the reasons given for revoking the charters were without merit. As to the poor academic performance, The State had this to say:

Based on the totality of the evidence presented on this allegation, I determine,while this issue is substantiated, it is not grounds to revoke the charter agreement under T.C.A. §49-13-122(b)(2). In the 2018-19 school year, Knowledge Academy achieved an Overall Composite of a Level 4 in TVAAS, meaningthat the school had achieved above expected student growth. Additionally, a February 2019 memo from the charter office to Knowledge Academywas the only evidence MNPS presented that demonstrated communication to Knowledge Academy regarding academic underperformance;in the memo, MNPS notified Knowledge Academy of underperformance in math and ELA as compared to the district,but also commended the school’s performance in science as compared to the district. Furthermore, in the 2018-19 school year, Knowledge Academy out performed the surrounding zoned middle schools in the Antioch cluster. While it is clear that Knowledge Academy has work to do to increase academic performance for its students, the academic evidence MNPS presented does not merit revocation of the charter agreement.

So, MNPS wanted to revoke the charter because of poor academic performance but Knowledge was performing better than the regular public schools in the same cluster.  MNPS was comparing Knowledge to the district average; not comparable schools.

On  the issue of teachers being paid late, that was not substantiated by the State. This is the State's findings:

Two complaints from two former staff members of Knowledge Academy is neither clear nor compelling evidence of this allegation, and Knowledge Academy presented evidence that refuted these claims by eleven teachers who were also employed at the school during the 2018-19 school year. Therefore, based on the evidence presented on both sides of this allegation, I am unable to determine that this issue is substantiated. Therefore, I cannot find evidence in this claim of financial mismanagement that merits revocation of the charter agreement.

Also, on the damning allegation that the CEO was running side businesses out of the school, that is not as bad as it at first sounds. It is hardly bad at all. In fact, the State says, "I determine that this issue is not substantiated." "From the evidence, it is clear that the former administration was seeking avenues to generate additional revenue for the school, including renting out the facilities, and the Governing Board was aware of these pursuits."

Some of the MNPS reasons stated for revoking the charter involved very petty things in which the Schools were out of compliance but working on improving.  To actually read the State's evaluation of the MNPS allegations,  follow this link.  If one had only causally observed and knew only what has been reported in the press about the issue of Knowledge Academies, one would think Knowledge was inefficient, failing to educate, mismanaged,  and corrupt. 

I am pleased that Metro does not have the final say on revoking a charter application. I am pleased that when Metro fails to approve a charter there is a means to appeal. Charter schools that are not performing as expected, or are misusing public funds, should have their charter revoked. However, I have zero confidence in the Schools Board's ability to fairly make that determination.  My view is that the MNPS Board can not be trusted to approve or judge charter schools.  They have a bias against them. The School Board does not want competition and school choice.  They are more interested in protecting their monopoly and bureaucracy than they are in educating children. I trust the school board about as far as I can throw them.

For more on this issue see link, link, link, link.

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Marsha Blackburn: HOLDING TURKEY ACCOUNTABLE FOR ITS ATROCITIES

From Marsha Blackburn -Protecting our Kurdish partners is a priority. Turkey must be held accountable for its destabilization of northern Syria, and ISIS must not be allowed to resurge. 

While I am encouraged that the lines of communication are open, this five-day pause in hostilities does not make up for the lives lost, families displaced, and homes destroyed by the Turkish incursion.  Not only are we abandoning our Kurdish partners, but Putin is exploiting our withdrawal.  We must not cede power to Moscow. 

 

Without reservation, I've joined Senator Lindsey Graham (R-S.C.) and Senator Chris Van Hollen (D-Md.) in introducing bipartisan, comprehensive sanctions legislation that holds Turkey, its leadership, and its military accountable for their atrocities. 

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School Board lays groundwork to ask for a whopper of a budget increase.

by Rod Williams - The Metro School Board recently studies teacher pay and says that to boost the salaries of Nashville teachers to match the city's median income would cost more than $100 million a year. Unions applauded the study.  If the School Boards plans to ask for the money suggested in the pay plan study that would be money they would need in addition to any other increases in operating cost.  That would be an increase request like we have never seen. That would be a whopper of an increase!

The current 2019-2020 operating budget for Metro Schools is $914.5 million which was a 3.2% or $28.2 million increase over the 2018-2019 budget. The school district requested $76.7 million in additional funding or an 8.6% increase over the the then current $886.3 million budget. The year before that, Schools requested a $45.7million  increase and only got a $5 million increase.

It should be noted that at the same time the Schools budget has been increasing, the enrollment has been declining despite the population increasing. Currently there are 85,163 students enrolled. In 2018-2019 the enrollment was 85,287. In the 2015-16 school year enrollment was 86,633 students.

Several candidates elected to the Council in the recent council elections ran on a platform to "fully fund" the schools.  When a large number of council members are on record as pledging to fund whatever amount the School Board says then need, that gives the School Board a blank check to ask for pie in the sky.  Look out! This should be an interested budget year.

For more information see link, link, link.

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School Choice Has Arrived: What Does It Mean for Education in Our State?

 From Grant Starrett:
You are invited to the following event: School Choice Has Arrived: What Does It Mean for Education in Our State?

Event to be held at the following time, date, and location: Friday, October 25, 2019 from 11:45 AM to 1:00 PM (CDT)

Waller Lansden Dortch & Davis, LLP
511 Union Street
#Suite 2700
Nashville, TN 37219
View MapAttend Event

Join the Nashville Federalist Society Chapter on Friday, October 25 at 11:45AM for a luncheon disussion on education with Shaka Mitchell, Tennessee Director for the American Federation for Children, and Justin Owen, President of the Beacon Center, at Waller.

Note: CLE is now avaialble for this program and the one on November 7 with Peter Wallison on the Administrative State. Save the date for our ethics CLE programs on December 5, starting at 11am.
IMPORTANT DETAILS

Justin Owen

Shaka Mitchell

The fee for the event is $15.00. You can pay online by credit card by clicking the green "Tickets" button above. If you would like to pay by check or cash, please send an email to grant@grantstarrett.com to RSVP and bring payment with you. (Checks made payable to: The Federalist Society.)
Lunch and refreshments are included. CLE credit is available.Parking is available in the adjoining garage. Attend Event

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Waiting List for Section 8 Housing Choice Vouchers Now Open

The Metropolitan Development and Housing Agency has opened its waiting list for Section 8 Housing Choice Vouchers. Online only applications will be accepted until 3 p.m. Friday, Oct. 25, 2019. Anyone currently on the Section 8 HCV waiting list from 2017 will need to reapply. For a direct link to the application, please click here.

The list may not be reopened for a very long time; it could be years.  If you are a Metro council member or community leader or one who has contact with low-income people, please spread the word.  It is often not the most deserving who get the limited number of vouchers but those who learn that MDHA is accepting applications.  

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Mayor Cooper Announces Metro Public Integrity Task Force

Metro press release - In keeping with his campaign commitment to an accountable and transparent government, Mayor John Cooper today announced the creation of a Public Integrity Task Force to review current practices related to ethics and government transparency.

The Public Integrity Task Force, chaired by Bill Harbison of the law firm Sherrard Roe Voigt & Harbison, has been given the responsibility of reviewing current Metro practices relating to ethics, conflicts of interest, contracting and procurement practices, political contributions, and permitted political activities by Metro employees, vendors, contractors, and members of boards and commissions. The group will also review Metro government’s current open meeting and public records policies.

Mayor Cooper has further directed the task force to examine the need for an independent Inspector General to work with Metro as well as the Office of Internal Audit in identifying and preventing potential fraud and waste in Metro government. The Public Integrity Task Force is expected to make its recommendations within 90 business days.
The complete list of the Public Integrity Task Force members follows:

• William L. Harbison (Chair) – Member, Sherrard Roe Voigt & Harbison
• Audrey J. Anderson – Counsel, Bass, Berry & Sims; Former Vice Chancellor, General Counsel and University Secretary, Vanderbilt University
• Martha Boyd – Attorney, Baker Donelson
• Alex Coure – Businessman; Co-Chair, Nashville NAACP Economic Development Committee
• Forrest Harris – President, American Baptist College; Professor, Vanderbilt University Divinity School
• William C. Koch, Jr. – Former Justice, Tennessee Supreme Court; President and Dean, Nashville School of Law
• Don Majors – Former Metro Council Member; Co-Chair, Nashville NAACP Economic Development Committee
• Ron C. Snitker – Executive Director of Financial Services, Waller Lansden

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What happened at the 10/15/2019 Council meeting: Legal undermined in settling lawsuits, "gay "coming out honored, parking ticket fees increased.

The agenda of this meeting was only eight pages long and there was not much of importance on the agenda yet the meeting is two and half hours long. If you are going to watch the meeting, you will get a lot more out of the meeting if you know what is under discussion. To access the  agenda, agenda analysis and my commentary on the agenda, follow this link.

I am providing my summary of the meeting below. However, be advised that I only hit the high points and report on what is important to me, so you may want to watch it for yourself. I do not even attempt to form an opinion on each zoning bill and normally only report on those that are controversial or are bills disapproved by the Planning Commission.  Also, if you view the minutes of the meeting you can find out from the official record what happened without watching. Unfortunately, the minutes are often not posted until a week later. You can access the minutes at this link. 

The meeting is graveled to order at timestamp 7.46. At timestamp 12:51, Mayor John Cooper addresses the Council. It is rare that the mayor ever addresses the Council and this is Mayor Cooper's second time to do so, having addressed the first meeting and this the second meeting of the Council. Cooper recognizes National gay Coming Out Day and endorses the resolution honoring the event which is on the agenda. He announces the $12.62 million the Convention Center Authority is going to give the city. He announces he is rescinding the  controversial Mayor Briley executive order concerning illegal immigration and announces the appointment of a task force to develop a policy to address the issue. He announces that soon he will be bringing before the Council a request of water and sewer rate increase and explains why this is necessary. He announces the city will be looking at traffic and transportation issues. He asks the Council to vote to confirm his appointments of Finance Director and Legal Director.  He says, "this will be the council that gets stuff done."

Appointments and elections:

• Jeff Syracuse is elected President Pro Tempore. He was the only candidate. 
• The Council elected Council members Zulfat Suara and Tom Druffel to the audit committee. 
• Kathleen Murphy was elected Chairman of the Planning Commission beating out Councilman Steve Glover by a vote of 37 to 3. Glover said he did not campaign among his colleagues for the position. He seems to me that if he had not counted votes and thought the vote would be competitive it would have been better not to have placed his name in nomination. While, if I were serving in the Council, I would have voted for my friend Steve Glover, I am actually pleased he did not get the position. It is very demanding and time consuming and Glover's influence and talents are best used elsewhere rather than being bogged down in the minutia of zoning controversies. 
• Councilman Freddie O'Connel was elected to a position on the Traffic and Parking Commission which means he will also serve as Chair of the Council's Parking and Traffic Committee. His nomination was uncontested. 
• The Vice Mayor appoints Chairs and members to eight "special committees." These are committees that will only exist for three months and then file a report with the Council of their findings. The special committees will also have citizens who are not members of the Council serving on the committees. The committees include; Why people are not voting and what can be done to improve voter participation, What steps can be taken to make sure teachers do not have to pay out of pocket for school supplies, street closures, Sidewalks and why does it cost so much to build them and how is the list of which sidewalks get build determined, why does zip code 37208 have the highest rate of incarcerated people in the nation, the pay of teachers, police and fireman and how we compare to other cities, what opportunities are provided to young people in Nashville, and Codes enforcement issues. I am pleased to see these steps taken. These are all issues that need special attention. I am especially pleased to see attention given to the sidewalk issue. We spend vast amounts of money to build sidewalks but don't get many new ones.

Public Comment: No one signed up to comment. This is somewhat surprising to me. With a new slate of radicals elected to the Council, I thought we may see some progressives take the opportunity to grandstand and propagandize and flex their muscle. On the second meeting of every month any Nashvillian may address the Council regarding a local concern. To do so one must register in advance with the Council office.

Resolutions. The Council begins considering legislation at timestamp 1:06:10. Most resolutions are lumped together and passed on the "consent agenda."  If there is not dissension then the resolution is considered to have passed unanimously.  Any member may have an item taken off of the consent agenda or have an abstention or "no" vote recorded. These are the resolutions of interest.

Resolution RS2019-30 "urges" settling the lawsuit against the city by Shaundelle Brooks, as next of kin of Akilah DaSilva. Akilah DaSilva was shot in the shoulder during the Antioch Waffle House shooting of April 2018. 911 dispatchers sent emergency responders to the Waffle House in Hermitage, nearly 10 miles away. The family claims the delay caused a massive blood loss that resulted in DaSilva’s death. However, that fact is in dispute because their were at least two other ambulances dispatched to the correct address so this mistake apparently did not cause the death of DaSilva.  Normally the Council settles a law suit after Metro Legal recommends it. My view is that when the legal department ask for a settlement of a law suit rather than litigating a law suit, the Council should defer to the legal department. However, in this case, the legal department has not yet reached a settlement with the plaintiffs. They are still in the discovery stages. That is a big difference. The resolution contains language that could be construed as an admission of guilt on the part of Metro government. The language of the resolution could help the family in a separate lawsuit they have against Vanderbilt Medical Center. Councilman Russ Pulley does an admirable job explaining all of this. Glover and Hager also drive home the point that passing this resolution could harm the interest of the city. Counil member Vercher speaks at length in favor of the resolution. The minority caucus supported this resolution. If this should pass, then it likely that everyone with a lawsuit against the city will lobby the Council for a favorable settlement and lawsuits will become political matters rather than legal matters.

The family of DaSilva wanted to address the Council. This takes a 2/3rds vote of the body which failed to approve. If I had a vote, I would have also voted "no." There was no need to hear from the family. There is a motion to defer the matter two weeks and that motion fails. The vote on the resolution passes by a vote of 25 to 13 with one abstention.  This sets a terrible president. When the meeting minutes are published I will post how members of the Council voted. See timestamp 1:30:33- 2:29:45 for the discussion.

Resolution RS2019-39  appropriates $11.3 million out of the General Fund Reserve Fund for the purchase of equipment and building repairs for various Metro departments. That is a lot of money but this is normal. It passes on the Consent agenda.

Resolution RS2019-49  recognizes October 2019 as LGBT History Month in Nashville and October 11, 2019 as National Coming Out Day. I don't think "coming out" is anything to celebrate and would vote "no" or at least vote "abstain," if I were serving in the Council. I am disappointed that this passed on "consent." It is worth noting however that this does nothing but express the will of the Council and spends no money nor actually does anything.

Bills on First Reading. As is the norm, all bills on First Readng are all passed by a single vote lumped together. Bills are not evaluated by Committee until after First Reading.

Bills on Second Reading: There are 16. These are the ones of interest.

Bill BL2019-1 raises the parking violation fee for most parking violations from $11 to $25. This seems reasonable to me.  With the scarcity of parking places and the increase in the value of parking space it seems reasonable to increase this fee. Councilman Sledge explains that this is the first step in a process to modernize our parking system.  It passes on a voice vote.

Bill BL2019-4 prohibits aerial advertising.  I always like seeing aerial advertising. The bill is amended and deferred one meeting.  The sponsor explains the reason is noise. I'm not buying it.

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Councilman at-large Steve Glover praises Cooper's actions so far. Glover to host meetings across the County.

Councilman at-large Steve Glover has posted a video on Facebook in which he announces nine meeting across the County to focus on hearing from the public and solving problems facing the city.  He also shares his views on the status of the new administration so far.  He says he is pleased Mayor Cooper has repealed the Briley Executive Order 11, which advocated that the State repeal the ban on sanctuary cites and implemented policies that came close to making Nashville a sanctuary city.  He also says he has been very pleased with the quality of the people Cooper as added to his administration. 

For those who wish to stay informed on issues facing the city, Steve Glover's Facebook page is a good resource.

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