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VOL. 8 | NO. 50 | Saturday, December 05, 2015

Civil Asset Forfeiture: 'It's a State License to Steal'

SAM STOCKARD | The Ledger

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The drugs in Kathy Stiltner’s car were over-the-counter antacids. The $12,000 in cash was from an inheritance. Still, police took the money – quite legally – and are still fighting to keep it, even after the drug charge was dropped.

It’s a story playing out in Tennessee and across the United States as law enforcement is allowed to seize cash and property without having to charge them with a crime.

And it’s attracted an unlikely coalition – the ACLU, the conservative Beacon Center and the Koch brothers political activism arm Americans for Prosperity – trying to persuade legislators in Tennessee and other states to change what they see as a law with “serious due process issues,” according to Hedy Weinberg, executive director of ACLU-Tennessee.

Stiltner was originally stopped on suspicion of drunk driving in July 2014. Even after Sevierville Police dropped a drug charge (antacids) against her in General Sessions Court and conceded she owned the money legitimately, the state still tried to keep the cash using Tennessee’s civil asset forfeiture law, says her attorney, Bryan Delius of Knoxville.

“It was an absolutely absurd power grab by the Department of Safety,” Delius says.

Stiltner’s East Tennessee case provides ammunition for groups across the political spectrum that want to repeal the state’s civil asset forfeiture law – or modify it dramatically – to provide more protection for people and stricter reporting requirements for law enforcement.

Currently, Tennessee law allows police to confiscate and keep property without ever charging the owner with a crime.

In the Stiltner case, police authorities took her cash with the justification that it had been involved or could be involved in illegal activity at some point. In essence, the property is charged with a crime, and if retained by law enforcement, is used in crime prevention.

Joe Bartlett, who heads Tennessee’s asset forfeiture legal division, pushed for forfeiture in the Stiltner case, saying the Sevierville Police and the judge who issued the forfeiture warrant didn’t have authority to return the money, Delius says.

The state attorney also argued in court Stiltner was lying about the cash and pointed to a 2006 crack cocaine possession conviction against her as proof it was connected to drugs.

A Knoxville administrative law judge ruled in Stiltner’s favor, saying she could continue efforts to keep her money. Stiltner won yet another round, Bartlett was set to appeal the decision but then dropped it, according to Delius.

Furthermore, judges who handled the case were “furious” with the state’s position it held the ultimate authority to return the property, Delius says.

State gets D-

With national debate shifting on civil asset forfeiture, the Institute for Justice is giving Tennessee near-failing grades for its laws, according to a new report, Policing for Profit.”

“Tennessee has appalling civil asset forfeiture laws,” the report states, earning a D-minus. It points out Tennessee laws:

• Set a low bar for forfeiture without a conviction required.
• Provide limited protections for innocent third-party property owners.
• Sent as much as 100 percent of proceeds directly to law enforcement budgets.

State law doesn’t require reporting of civil assets forfeited, but figures provided by the Tennessee Department of Safety and Homeland Security show law enforcement agencies forfeited almost $86 million in seized cash from 2009 to 2014, not including vehicles, boats and other items, the report shows.

Tennessee law enforcement agencies also netted $69 million from the U.S. Department of Justice in seized asset proceeds between 2010 and 2013, most of it stemming from joint task forces and investigations, which aren’t affected by U.S. Attorney General Eric Holder’s move in early 2015 to eliminate federal civil asset forfeitures.

Holder’s decision did not affect joint federal-state operations or seizures by local law enforcement done under state law.

Besides Delius, attorneys across Tennessee are frustrated by the process, which requires a lower standard of proof for cash and property to be taken than for a criminal case conviction.

“It’s a state license to steal,” says Darwin Colston, a Murfreesboro defense attorney.

The idea behind changing the law isn’t to help criminals get out of a pinch, he says. Rather, it is to keep law enforcement from abusing the system and taking money, vehicles and other items from people, some of whom are never charged with wrongdoing.

Cookeville attorney Jason Hicks questions whether the law is designed to take money out of the hands of drug dealers or to fund law enforcement.

Admitting most of the people he’s represented in these cases ran into law enforcement for legitimate reason, still, he says, “Sometimes departments will selectively seize things, things that have value, cash always.”

State of Tennessee v. $20,000

State Sen. Brian Kelsey, who chairs the Senate Judiciary Committee, plans to file legislation during the 2016 session aimed at redirecting funds brought in through civil forfeitures and reconfiguring the law.

Kelsey oversaw a fall hearing dealing with civil asset forfeiture, one in which some law enforcement officials said repealing such a law would help the criminal element running drugs in Tennessee, creating friction with lawmakers who believe the law borders on being unconstitutional.

While seizures of drugs, cash and property made in criminal cases require an arrest and conviction based on guilt beyond a reasonable doubt, police must show only a preponderance of evidence in order to seize someone’s vehicle or cash if they believe it is involved with criminal activity, mainly the illegal drug trade.

In fact, the state literally sues the assets, and the cases are identified, for instance, as, “State of Tennessee v. $20,000.”

“Courts have ruled that there is not a constitutional problem with that. But good policy is not bound by the limits of the Constitution,” says Kelsey, a conservative Republican from Germantown.

“Whether it’s unconstitutional or not, I think it was clear from that hearing that good policy should say we should require an arrest whenever there is a seizure made.”

Debate is expected to focus on seizures from third parties, as well.

For instance, a car could be taken from a person who lets someone else borrow it, not knowing it could be used for possible criminal activity.

Kelsey also says law enforcement agencies should be required to report to the state how much money and assets they seize if civil asset forfeiture is allowed to stand.

In addition, that money should be sent to the governing body’s general fund to determine how it should be budgeted.

“It’s been a fight for several years now, but I think there’s a growing consensus among legislators that this is a real breakdown in the separation of powers and that this is not the way to treat Tennessee citizens, that we can have a higher standard of due process that we allow for our citizens,” Kelsey says.

No maximum or minimum exists for the amount law enforcement officers can seize from a person and keep.

In fact, Kelsey and other critics of the law say law enforcement officers are more likely to look for higher amounts of cash, which can be placed in drug funds and used for frivolous spending, from parties to tricking out department SUVs.

News reports over the past few years show law enforcement officers pulling over vehicles on Tennessee’s interstates and asking the drivers if they have any cash on hand.

One of the most famous incidents involved a tractor-trailer being driven on Interstate 40. When officers stopped the driver and searched the trailer they found a large sum of money hidden in bottles of water.

They didn’t arrest the driver, who said he was ignorant of the money, but seized the cash, saying it was probably tied to drug trafficking.

“If they can’t prove that crime, why should they get to keep that money?” Kelsey asks.

Some refer to this type of law enforcement as a fishing expedition of sorts. In fact, Tennessee has had its share of abuse by drug task forces accused of searching for cash in vehicles traveling the interstates.

The Judiciary Committee chairman believes sending cash and the proceeds from assets to a general fund would lead to better budgeting practices, giving smaller law enforcement agencies more consistency in their annual spending, instead of leaving their budgets dependent on the amount of money they seize.

‘A travesty’

Knoxville Police Chief David Rausch, who testified at the Judiciary Committee’s study session, holds a different opinion and takes exception to Kelsey’s point on budgeting.

RAUSCH

“I respect Chairman Kelsey very much, but if you think about it, it’s almost a socialist view, quite frankly,” Rausch says. “… That’s what they’re saying. If you put it all in one pot and then you divvy it out equally. I just don’t subscribe to that.”

Rausch, whose department takes in about $150,000 annually in cash and other assets from civil forfeitures, acknowledges incidents of abuse across Tennessee, some of which have become a “little bit folklore,” and he notes those have caught lawmakers’ attention on Capitol Hill.

But he says poor police work is no reason to throw out the law.

“The vast majority of civil asset forfeiture efforts are done appropriately and they’re done legally, and they’re done to impact what civil asset forfeiture was set up to impact and that is illegal organized criminal,” Rausch adds.

“And what we know in law enforcement is the quickest way to impact criminal organizations is to hit them where it hurts worst, and that’s in their property and their finances.”

Taking away this type of law enforcement tool would be a “travesty,” Rausch says.

Civil asset forfeitures often accompany criminal cases, going through different courts.

But criminal charges can’t be filed in every case involving seizures, Rausch notes, and he points to the case involving the tractor-trailer truck with millions of dollars on board as a prime example.

In that situation, the driver couldn’t be arrested because he didn’t know the money was in the trailer, yet it was clear the money was to be used for a major drug purchase, Rausch says.

“Law enforcement has the burden of proof to show there is a connection between the asset and criminal activity. And that burden exists on us,” Rausch says. “Now, it’s a preponderance of the evidence, not beyond a reasonable doubt. But that’s the standard in any civil action.”

Setting up a showdown

Shelby County Assistant District Attorney Steve Jones irked some senators during the Senate Judiciary meeting when he said dialing back the civil asset forfeiture law would be a “positive” development for drug traffickers.

“The criminals will thank you,” Jones said, according to an Associated Press report.

Sen. Mike Bell, a Riceville Republican, responded by pointing out senators are simply trying to protect people who become “innocent” victims of the system.

“It’s almost like you were trying to set up that you’re either for us or you’re for the criminals,” Bell told law enforcement officers.

Despite what some state lawmakers say, Jones, a leader in the West Tennessee Violent Crime and Drug Task Force, prefers the law remain intact.

Previous new reports by WTVF NewsChannel 5 in Nashville pointed out most interstate stops appeared to be targeting westbound vehicles likely to be carrying money instead of drugs, so law enforcement agencies could put the cash directly into their own coffers.

Asked if this gives officers a license to fish for money and other items to prop up drug funds and pay their salaries, Jones says, “Good officers do look for all evidence of crime, including the fruits of the crime. If drugs don’t produce proceeds, dealers don’t produce drugs.”

In addition to turning up illegal drugs and money, officers in his task force have found sexually exploited child victims, fleeing murderers, illegal firearms and stolen identity suspects, he says.

The task force initiated 333 cases in 2014 and made 289 arrests, seizing illegal drugs of every type and dismantling meth labs.

But in 17 stops its officers found more than $205,200 officers believed to be connected to crime but didn’t think they could find probable cause and declined to seize it, allowing owners to “drive away from the stop,” Jones says.

“If the legislature would fund law enforcement to replace the loss of non-taxpayer forfeiture funding, there would be no problem with sending forfeitures to the general fund. But nobody will propose that,” he says.

“All the discussion I have heard involves the effect of defunding law enforcement with no concern whatsoever of providing replacement funding to law enforcement. In my book, at least in effect, that is anti-law enforcement.”

The American Civil Liberties Union agrees with Jones on that point alone.

“It was unfortunate what was said at the hearing by a law enforcement officer that this would increase crime, that this would be a gift to criminals,” says Hedy Weinberg, executive director of ACLU-Tennessee.

“From our perspective, law enforcement needs resources, but those resources should not come from the backs of innocent Tennesseans. That’s the most important thing to speak to.

“No one’s challenging that law enforcement needs a budget that provides enough for payroll and the tools they need to fight crime. But at the same time those resources cannot be basically stolen from Tennesseans, those traveling the roads in Tennessee.”

Strange bedfellows

The issue is pulling groups from across the political spectrum into concert as the legislative session draws near.

The ACLU, the conservative Beacon Center and the Koch brothers political activism arm Americans for Prosperity are trying to persuade legislators to change what they see as a law with “serious due process issues,” according to Weinberg.

Says AFP’s Andrew Ogles, “The forfeiture reform, criminal justice reform, is something that’s firmly in our wheelhouse, and that’s two areas we’re looking at closely during the 2016 legislative cycle.”

Any process should have open and “transparent” due process, Ogles contends, and the burden should lie on the government to prove guilt, not on the citizen to prove innocence. He points to “instances of abuse across the country” as good reason to tighten laws to protect the constitutional rights of individuals.

The Beacon Center’s Justin Owen says his organization runs into problems trying to figure out just how much is seized from people because of lax reporting requirements, especially for local law enforcement agencies.

“They don’t have to report that stuff, so they just keep it in their operations and turn around and buy SUVs and drug dogs and all that stuff,” Owen says.

“There’s really no state-level requirement that they report that information and account for it.

“That’s one of the things we’re looking at pursuing legislatively is reporting requirements so we can shine more light on how much money they’re taking and who they’re taking it from.”

Owen describes situations in which law enforcement might short-circuit forfeiture reporting by telling people they’ll return $2,500 of a $5,000 seizure if the person signs a non-disclosure form.

“A lot of people will do that because they’re scared,” Owen says. “They don’t know.

“And they don’t have any clue how to go about getting their full money back. So it really is a problematic process.”

Ultimately, his group wants a person to be convicted of a crime before their assets can be seized.

Both the Department of Safety and Homeland Security and Metro Nashville Police, however, say the system is working.

“We believe that the law is very effective, because it weakens the criminal pipeline and deters other criminal activity of drug dealers or those who attempt to commit other criminal activity,” says Lt. Bill Miller of the Tennessee Highway Patrol.

The Department of Safety, which has a grip on the outcome of civil asset forfeitures, opened 9,525 cases in 2014-15 and reported $13.44 million as the total dollar amount seized by law enforcement last fiscal year.

In the two previous years, it opened 10,500 and 10,941 cases.

In addition, law enforcement agencies seized nearly 5,800 cars and trucks, 146 motorcycles, 10 boats, 168 RVs and vans, 812 miscellaneous items such as papers and jewelry and 54 other major items, but no real estate.

Metro Nashville Police Department considers asset seizure and forfeiture “a critical tool” for criminal investigations, according to Public Information Officer Kris Mumford.

Civilian staff review seizures and forfeiture warrants every day to make sure they comply with state law and meet notification mandates.

Seizures are tracked from start to finish, with the department coordinating with the DA’s office, Davidson County Criminal Court and the Department of Safety.

Property owners are notified if their assets are to be returned, but when they are forfeited by the court, cash and proceeds from the sale of items go toward officer training and investigative tools.

Forfeited property is placed on Metro government’s ebid site, and even though state law allows police to use vehicles and other forfeited items, the department rarely uses those, and it doesn’t drive seized vehicles, according to Mumford.

Jones contends the idea of forfeiting assets through a preponderance of evidence is “not an outlandish concept” and points out property disputes are resolved by this standard daily civil courts nationwide.

Though he acknowledges the criminal and civil justice systems aren’t perfect, being set up as “adversarial systems,” both provide safeguards to ensure due process.

“This is the most critical safeguard: Immediately after a seizure, the law requires a judge determine the right to proceed further, it does not leave it up to the officer,” Jones says in a statement.

These probable cause hearings enable the person whose property was seized to argue in court it isn’t connected to illegal activity. They’re supposed to be notified and placed on a docket within 30 days, though Delius of Knoxville says that usually isn’t the case.

If the judge rules in favor of the individual, the property must be returned to them immediately, though Stiltner didn’t receive such a courtesy.

But if the judge finds probable cause to forfeit the property, any party holding an ownership interest, such as a lien on a vehicle, can file a claim with the Department of Safety, according to Jones.

Knoxville’s Rausch says legislative efforts are misdirected, pointing out officers do work on the front end to make sure the assets seized are connected to criminal activity.

“There are going to be those rare occasions when somebody got overzealous and did it inappropriately, as happens in all professions,” Rausch says.

“But does that mean everybody in that profession should pay by losing that ability, a great tool that has been very effective in combatting criminal activity.”

Sam Stockard can be reached at sstockard44@gmail.com.

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