Wednesday, July 06, 2022

Tennessee civil asset forfeiture brought in $16M in funds in 2021, but transparency lacking

By Jon Styf | The Center Square, Jul 4, 2022 -  In 2021, law enforcement in Tennessee seized $16 million worth of cash and $15.8 million was forfeited in court. But according to annual reports from Tennessee's Department of Safety and Homeland Security, departments used just $195,000 of those funds.

Each year since Tennessee law began requiring those disclosures in 2018, similar numbers have appeared.

In 2020, $15 million was seized, $8.4 million was forfeited in the courts but just $1,980 was recorded as being used. In 2019, $12 million was seized, $12 million was forfeited and just more than $300,000 of the proceeds were used.

Civil asset forfeiture is a legal process where law enforcement takes possession of private property if it believes there is probable cause that the property – either cash or a vehicle or anything else of value – was used to commit a crime.

Wes Moster, director of communications for the Department of Safety and Homeland Security, said that no one from the department would do an interview on the topic of civil asset forfeiture and asked for specific questions to be emailed.

Moster, however, did not respond within the first 48 hours to a follow-up email with questions sent by The Center Square, including questions on where the funds went, why some departments such as the 23rd Judicial District Drug Task Force collected far more in seizures than the rest ($1.8M in 2021) and whether the department felt that the current system was working in Tennessee.

In 2020, the 23rd District Task Force seized $760,000 in funds while in 2019 $1.7 million was forfeited in the same district, which includes a section of Interstate 40 near Dickson between Nashville and Memphis.

If property is seized and no arrest is made, law enforcement will issue a Notice of Seizure and a forfeiture warrant hearing will be set.

The problem with that, according to Managing Attorney Lee McGrath of the Institute for Justice, is that his group's report "Policing for Profit" shows the median currency seizure in Tennessee from 2015-19 was $675 and it would cost much more to pay a lawyer to fight for the return of the money than to just let law enforcement keep the funds.

Tennessee also charges a $350 bond to appeal the seizure of funds, the removal of which was discussed in 2020 by the Tennessee Legislature but died in the House after passing the Senate.

This past session, legislation sponsored by Sen. John Stevens, R-Huntingdon, and Rep. Jerry Sexton, R-Bean Station, that would have made the asset forfeiture process part of criminal court instead of civil court died in committee as well.

McGrath worked with Sexton and Stevens on the legislation and has done so with lawsuits and legislation throughout the country.

'Policing for Profit' shows that, in 2017-18, 75% of the civil asset seizure cases in Tennessee go uncontested. The state's report shows that, in 2021, $11.6 million was taken by law enforcement and retained by uncontested default while $2 million was forfeited through a hearing and $1.7 million was forfeited through a settlement while $1.3 million was returned due to settlements and $33,500 was returned after a hearing.

"We wanted to create a system in which the Tennessean must be convicted of a crime as a prerequisite to forfeiture, to losing title, to losing ownership," McGrath said.

Nebraska, Maine, New Mexico and North Carolina have eliminated civil asset forfeiture, making it part of the criminal process where a person must be convicted and then the item must be found to have been an instrument or proceeds involved in a crime to be forfeited. In the Tennessee system, the criminal case for the individual and civil case related to seized property are run separately.

McGrath also explained that local and state agencies can transfer a case to a federal prosecutor and then the local agency can receive a percentage of those funds in what is called equitable sharing.

"It's one thing to regulate state law but if you don't try to address the federal law, your state regulations will be impotent," McGrath said.

McGrath said there are two sets of forfeiture numbers with $147 million forfeited under state law in Tennessee from 2000-19 and $97 million forfeited under federal equitable sharing during that same time frame. McGrath said that he advocated in Tennessee for legislation to "close the back door to federal forfeitures."

Tori Venable, Tennessee State Director of Americans for Prosperity, said that each year her group advocates for civil asset forfeiture reform legislation and every year it is opposed by the Department of Safety and Homeland Security.

"Unfortunately, a lot of the drug task force agencies in our state rely solely upon civil forfeiture to fund their departments," Venable said. "It's not supposed to fund actual law enforcement salaries but because it's a combined federal and state joint task force, that is how they get around it.

"They should not have to rely on violating someone's constitutional rights to fully fund their department."

The paper trail on how that funding works, however, is a mystery according to Venable, because of a "complete lack of accountability and transparency."

"Clearly, the money is going somewhere," she said, noting that some reform has occurred such as legislation that possession of cash alone cannot be the reason for a seizure.

She said that this year's legislation would have exempted less than $200 in cash and vehicles valued at less than $2,000 from seizure to avoid court costs that were higher than the value of the possessions.

McGrath and Venable said that research across the country on civil asset forfeiture has shown that police departments and drug task forces concentrate patrol efforts on arresting and seizing drug money leaving an area instead of drugs entering that area by sitting on a particular side of the highway in a region such as Interstate 40 between Nashville and Memphis.

Venable said that attempts to legislate transparency on which side of a highway law enforcement is patrolling before a seizure has failed.

A 2018 advisory report on civil asset forfeiture in Tennessee recommended that all specific forfeiture data be collected and reported, bonding requirements be removed, court-appointed counsel be available to all, mandatory law enforcement forfeiture training, that forfeited funds go to the state's general fund, that law enforcement not following the rules are prohibited from receiving federal equitable sharing funds and that civil forfeiture be removed for cases with less than $100,000 and instead criminal forfeiture would be used in those cases.

Venable said that the times when issues have come to light with civil asset forfeiture are cases such as a Knox County Sheriff's supervisor using cash and credit cards from a narcotics unit to purchase personal items including $138,000 worth of Apple products between 2011-2018, $13,000 in Yeti coolers and $2,200 for a Google Nest indoor security system.

Former Assistant Chief David Henderson, head of Knox County's Narcotics Unit, was indicted on federal charges of taking seized drug assets and using them for personal use.

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