Tennessee Bill Would Reform the State’s Asset Forfeiture Process and Opt Out of Federal Program

NASHVILLE, Tenn. (Feb. 11, 2021) – A bill introduced in the Tennessee Senate would make several reforms to the state’s asset forfeiture process and close a loophole allowing state and local police to circumvent stringent state asset forfeiture laws by passing cases off to the feds.

Sen. Frank Niceley (R-Strawberry Plains) introduced Senate Bill 839 (SB839) on Feb. 10. The legislation would require the district attorney general to review the underlying circumstances of a seizure to determine if probable cause exists to justify forfeiture. If probable cause cannot be established, the district attorney would be required to file a motion to dismiss the application for a forfeiture warrant.

SB839 would also raise the evidentiary standard in forfeiture cases from “a preponderance of evidence” to “clear and convincing evidence,” a much higher threshold of proof.

The proposed reforms would exempt U.S. currency totaling one thousand dollars ($1,000) or less and a motor vehicle of less than two thousand dollars ($2,000) in market value from forfeiture.

Passage of SB839 would build on reforms signed into law last year by Gov. Bill Haslam in 2018.

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 during the 2017 legislative session.

The Institute for Justice gives Tennessee’s current asset forfeiture process a D- grade and calls its laws “appalling.” It specifically cites the low threshold of proof.

The passage of SB839 would also opt Tennessee out of a federal asset forfeiture program in most cases. 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) that remains in effect today.

FEDERAL LOOPHOLE

“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 new 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 often bypass 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.

SB839 would close the loophole with the following language.

(a) 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.

(b) 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.

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.

NECESSARY

While some people believe the Supreme Court “ended asset forfeiture, its opinion in Timbs v. Indiana ended nothing. Without further action, civil asset forfeiture remains. Additionally, as law professor Ilya Somin noted, the Court left an important issue unresolved. What exactly counts as “excessive” in the civil forfeiture context?

“That is likely to be a hotly contested issue in the lower federal courts over the next few years. The ultimate effect of today’s decision depends in large part on how that question is resolved. If courts rule that only a few unusually extreme cases qualify as excessive, the impact of Timbs might be relatively marginal.”

Going forward, opponents of civil asset forfeiture could wait and see how lower federal courts will address this “over the next few years,” or they can do what a number of states have already taken steps to do, end the practice on a state level, and opt out of the federal equitable sharing program as well.

WHAT’S NEXT

At the time of this report, SB839 had not been referred to a committee. Once it receives a committee assignment, it must pass by a majority vote before moving forward with the legislative process.

The post Tennessee Bill Would Reform the State’s Asset Forfeiture Process and Opt Out of Federal Program first appeared on Tenth Amendment Center Blog.