Tennessee Trial Lawyers Blog
Civil Forfeiture
In Tennessee, the police can seize your car, take your money, take your personal property, take your home, sell these items and use the proceeds of that sale for their benefit without the person being found guilty of a crime. In fact, the police can seize and sell these items without even charging the owner with a crime. And worst of all, the laws in Tennessee promote this activity.
Civil forfeiture is different than criminal forfeiture. In Tennessee, in civil forfeiture cases the police only have to show by a preponderance of the evidence that the property sought to be seized is related to a crime or criminal activity. In criminal cases the court must prove a Defendant guilty beyond a reasonable doubt. Next, in criminal forfeiture cases the property is seized following a criminal conviction. In civil forfeiture proceedings, no criminal charges need to exist. If they do exist, the police can take your property or money regardless of the outcome. Additionally, in criminal forfeiture cases the property is the object of the prosecution and the owner makes a claim on the property through the procedures set forth in Tenn. Code Ann. 40-33-201 et. seq. The majority of the forfeiture cases in Tennessee are civil.
Civil asset forfeiture laws in Tennessee were given a (D-) by the Institute of Justice in their comprehensive study of civil forfeiture laws of the United States named Policing for Profit: The Abuse of Civil Asset Forfeiture (http://www.ij.org/images/pdf_folder/other_pubs/assetforfeituretoemail.pdf). The grade was based on several factors. One of the main reasons for the low grade is that in Tennessee owners are effectively presumed guilty and in innocent owner claims bear the burden of proof to recover their property. In Tennessee, the police have the lower burden of proof of preponderance of the evidence to prove that the property sought to be seized is related to criminal activity. And once they seize the property or cash, they keep 100% without having to report how they used the proceeds. Basically, the Institute of Justice thinks Tennessee is doing a poor job protecting the constitutional rights of its citizen as it relates to civil forfeiture laws.
Channel 5 News Report
The local media also thinks Tennessee police officers are doing a poor job. In Channel 5 news report last year, the news channel spent months investigating the drug interdiction officers in various counties and on several task forces. One particular incident covered in the news report involves an officer seizing a vehicle on the Interstate 40 without any reason. Although he alleged the driver of the vehicle was swerving, the helicopter in the air tells a different story. It has nothing to do with swerving as the video clearly shows and has everything to do with profiling. Police in Tennessee admittedly profile and it is being used by each and every police officer sitting on the side of the interstate. These officers often pick their target based simply on the type of vehicle and the state the vehicle is from. They then get behind or beside that vehicle and basically track the vehicle until it commits a “traffic violation”. As the video shows, if the driver does not commit a true violation of the law, the police often still choose to go ahead and stop the vehicle despite it being a direct violation of the Tennessee and US Constitution.
http://www.newschannel5.com/story/14643085/police-profiting-off-drug-trade
Money, Money, Money
So why do the police do this? Money, Money, Money. The State of Tennessee receives millions and millions of dollars each year from civil asset forfeiture. They are among the highest in the country on the percentage of proceeds that go to law enforcement. And while some states use this money for education and public works, Tennessee allows local law enforcement to spend this money on drug enforcement. If the local police did not need any more incentive, the local law enforcement agencies receive 100% of proceeds for their respective agency. They cannot spend it on their salaries, but they do spend it on their agency which continues to operate in large part due to the millions of dollars they bring in each year.
When Phil Williams asked Kim Helper, District Attorney for the 21st Judicial District, whether it was all about making money, she responded: “Well, you know, when you say ‘make money,’ I guess it is a way for us to continue to fund our operations so that we can put an end to drug trafficking and the drug trade within this district.”
Further proof that the police activity is based on the money, sources reveal that the police on Interstate 40 are pulling over vehicles on the westbound lane of the interstate at a much higher rate than on the eastbound lanes. This is because they believe that drugs go east and money goes west. So they are clearly following the money and not the drugs. Again, the police agency that seized the property keeps 100% of the proceeds!
How Do You Fight Civil Asset Forfeiture?
To get your property back, you must file a claim with the Tennessee Department of Safety within thirty (30) days of receipt of the civil forfeiture notice. Failure to file a claim will result in a waiver of the owners’ rights to claim the property or cash and will result in permanent forfeiture. See http://www.tn.gov/safety/thp/forfeit.shtml. The person claiming the property is entitled hearing in front of an administrative judge. If the owner loses at the administrative level, they can file an appeal in the Chancery Court. A final appeal goes to the Court of Appeals and Supreme Court the same as any civil case.
Hire a Lawyer
The person claiming the property is entitled to a lawyer. Because the laws in Tennessee do not favor the owner of property who has been targeted by local police, hiring an experienced trial lawyer is very important. Many lawyers offer consultations for asset forfeiture cases and can provide invaluable assistance in your fight to reclaim your property and money.