Tennessee Lawmaker Barrett Rich Proposes Outlawing Civil Asset Forfeiture

by Eapen Thampy

Tennessee Representative Barrett Rich (R-94) has introduced House Bill 1078. From the bill summary:

Generally, present law provides for forfeiture of assets in connection with criminal activity or other violations of law. This bill states that the rights of any owner or owners of property provided for in this bill will supersede and override all Tennessee procedures, statutes and regulations governing forfeiture of property to the state or any county or municipality, whether the property is real, personal, or in other form. This bill further states that to the extent any statute, regulation or procedure is in conflict with this bill, the conflicting provisions will be null and void.

This bill provides that no seizure of any property may be executed without first obtaining a seizure warrant issued by a magistrate who is popularly elected within the county where the seizure is to be executed. If the seizure warrant identifies locations in more than one county, then the magistrate issuing the warrant must preside in a court in one of those counties. Any officer with the statutory authority to arrest an offender will have the authority to request the issuance of a seizure warrant. Upon issuance of a seizure warrant, only the sheriff of the county in which the seizure is to be executed will have the power to seize any property, real or personal.

If a forfeiture warrant is issued, upon execution of the forfeiture warrant, all real property seized will be either sequestered and guarded against damage from third parties, or released to the owner or occupant for use and caretaking until the disposal of the property is resolved by the court. Any person entrusted to such use pending the hearing will be responsible for any loss due to damage caused intentionally or by neglect, or removal of contents subject to the seizure. All personal property seized will remain upon the real property where it was located according to the warrant. If the real property is also being seized, the personal property will be removed to a secure location under the supervision of the jurisdiction wherein the magistrate presides.

The owner or persons in possession of the property at the time of the seizure must receive full documentation of the warrant and a receipt particularly describing the property seized and its condition. The seizing officer will bear custodial liability for the safekeeping of the property throughout its possession until disposition by the court. The owner of the property, lessor thereof, or agents of either will have access to the property sufficient to assure the safety and security of the property at all stages of the holding of that property prior to the disposition ordered by the court.

The person or entity claiming ownership of the property that has been seized will have the right to an expedited recovery hearing upon a showing of potential loss of value if such expedited resolution is not accomplished. No forfeiture will be final nor will title or other indicia of ownership pass to the state or jurisdiction seeking forfeiture until:

(1) The owner of the property in question is prosecuted and convicted of the criminal acts which render the property subject contraband; or
(2) The property is deemed contraband on account of its nature by a court of jurisdiction, the magistrate of which is an elected office, after a hearing wherein any persons opposing any finding of contraband shall have due process to present a case why it is not.

Any property damage, spoilage, or loss of any criterion of value during the pre-hearing possession of the jurisdiction will be grounds for recovery of that damage by the owner or user, from the jurisdiction making the seizure, if the hearing finds in favor of the opponent of the seizure. Such recovery may be ordered by the court wherein the seizure hearing is held, or in a separate suit by the owner or other interested party after return of the property.

Phil Williams from NewsChannel 5 in Nashville reports:

Tennessee lawmakers are prepared to consider a major overhaul of laws that allow police to take cash off of drivers to fund their agencies.

One lawmaker said this may be the year for some serious reforms.

It all stems from NewsChannel 5′s two-year “Policing For Profit” investigation.

Rep. Barrett Rich’s bill, as drafted, would completely outlaw the practice known as civil asset forfeiture. That practice allows police to take people’s cash or property without charging them with a crime.

While Rich didn’t believe he had the votes to go that far, he said that there is an emerging consensus over other reforms to protect the innocent.

“Since I’ve put the bill in, I’ve had member after member after member wish to cosponsor the bill,” he told NewsChannel 5 Investigates .

Rich comes to the issue from the experience of having served as a Tennessee state trooper. The West Tennessee Republican himself did some interstate interdiction.

That’s the kind of enforcement activity that — for some agencies — has become more about making money than stopping drugs.

“When we went back and we watched NewsChannel 5 and we saw some of the issues that people have faced with civil forfeiture, the one thing that we see is that they are not actually given the opportunity to be heard by a real judge immediately,” Rich said. Phil Williams, Lawmakers Set to Debate ‘Policing For Profit’ Reforms, NewsChannel 5, 14 Mar. 2013.

Other prime co-sponsors who are supporting this legislation are: Tony Shipley, rep.tony.shipley@capitol.tn.gov , (615) 741-2886, Karen Camper, rep.karen.camper@capitol.tn.gov , (615) 741-1898Jeremy Faison, rep.jeremy.faison@capitol.tn.gov , (615) 741-6871G.A. Hardaway, rep.ga.hardaway@capitol.tn.gov , (615) 741-5625William Lamberth, rep.william.lamberth@capitol.tn.gov , (615) 741-1980Micah Van Huss, rep.james.vanhuss@capitol.tn.gov , (615) 741-1717Eric Watson, rep.eric.watson@capitol.tn.gov , (615) 741-7799. Rep. Vance Dennis, R-Savannah, has also been working on similar legislation.