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So-called ‘civil forfeiture’ by police is outright theft

Editorial Board • Mar 7, 2016 at 10:40 AM

We have no doubt the Tennessee Legislature joins us in holding our law enforcement community in the highest esteem. These men and women put their lives on the line for us every hour of the day, and they are deserving of our respect.

But they are wrong to oppose legislation now before the state legislature that would, at long last, rid us of a horrid practice that on its face is unconstitutional: the outright theft of personal property by law enforcement agencies using what’s called civil forfeiture.

The practice spread across the nation like a plague once police agencies saw what a cash cow it could be. This “policing for profit” has resulted in the taking of personal property, often cash, from individuals who have not even been charged with a crime, much less convicted of one.

Several years ago, Tennessee enacted some reform of civil forfeiture, requiring that persons whose property is stolen by law enforcement be given a receipt, and a notice of a hearing. As well, the officer who seizes property is required to file a sworn affidavit stating the legal and factual basis of why the property was seized.

But that basis can be mere suspicion. And the person whose property is taken must then demonstrate his innocence, which turns on its head the whole concept of our legal system of innocent until proven guilty.

Last July, Morristown police seized cars and $6,000 in cash, which a police sergeant allegedly kept for himself. The sergeant later lost his job and all the vehicles were returned to their original owners, but only after the Tennessee Department of Safety ordered them returned.

Not only did reforms not go far enough, but neither does the current legislation.

The bill before the legislature would not allow any seizure of private property without an immediate arrest, and would not allow forfeiture of seized property absent a criminal conviction. It would require a second and separate trial to obtain forfeiture.

And it would do one more thing that has local law enforcement across the state agitated beyond measure. No longer would the local agency enjoy the fruits of legalized theft. The bill would require that all funds go to the state’s general fund, rather than the local agency.

But the legislation needs to add one more step. Several states already have effectively done away with civil forfeiture to protect their residents, but there’s a federal loophole that needs to be closed. There should be a provision added to the Tennessee bill that stops state and local law enforcement from turning cases over to the federal government, thereby circumventing any restrictions on asset forfeiture.

That’s what’s happened in California; police simply avoid civil liberty protections and limits on revenue they can collect by turning cases over to the feds. In return, state and local agencies get 80 percent of the proceeds back through what’s called the Federal Equitable Sharing Program.

To hear the opposition to this bill, one would think the sky is falling. Sullivan County District Attorney General Barry Staubus says if this law is passed, it “would effectively end drug prosecutions in the state.” Knoxville Police Chief David Raush said passage of the bill “would make Tennessee the haven for criminal gangs and a hub for criminal enterprise.”

The proposed reforms would do no such thing. Police would still be able to seize assets from convicted criminals, but they would no longer have the power to simply walk off with your personal property without first proving in court that it was connected to actual criminal activity.

Absent this law, state residents will continue to be presumed guilty, as they bear the burden to prove themselves innocent . From 2009-2014, Tennessee law enforcement agencies seized almost $86 million in cash without criminal charges. That’s in addition to the gravy collected using the Federal Equitable Sharing Program — another $69 million.

There is no defending this legalized theft by those charged with our protection. This appalling practice must end, and it behooves the legislature to see to it.

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