• Dave McGuire

Asset Seizure: Policing for Profit

The Clarksvillian

Civil asset forfeiture, or seizure, is one of the most shocking powers of the government. This power occurs when law enforcement confiscates private property with or without charging the owner with a crime.

In Tennessee, the betting odds place individuals in a position of law enforcement taking your personal property rather than being a victim of criminal theft. Surprising, isn't it? Reflecting back more than a decade, you'll find Tennessee law enforcement has taken more than $150 million in cash and personal property – without criminal charges or legal accusations of criminal activity. The proceeds from these types of seizures are generally applied to budgets for equipment, computers, facilities, vehicles, or training. The concerns surrounding these abuses increased after The Institute for Justice released a study scoring Tennessee with a "D- "for "appalling civil forfeiture laws" at the state level. In late 2019, the U.S. Commission on Civil Rights wrote to Tennessee officials outlining the reasons our civil asset forfeiture laws were among the least protective of property owners in the entire United States. In this regard, Tennessee is unique to most other states by requiring property owners to pay a cost bond to start the process necessary to have wrongfully seized property returned. That fee? $350.

The average civil asset forfeiture taken in Tennessee is roughly $675. That dollar figure is rather low for the intended seizure purpose, when placed against higher-profile crimes. In 84% of cases, the value of seized cash and/or property is small enough to be a deterrent to filing an appeal to return property. The expense of hiring an attorney and paying court & seizure fees can easily surpass the seized property or cash value. It's not surprising to find several states place the burden of proof on the property owner – citizens are guilty until proven innocent. In Tennessee, the current law holds the government maintains a burden of proof, but those words do not match with the nation's 2nd lowest burden of proof standard for law enforcement.

The former head of the 23rd Judicial District Drug Task Force, David Hicks, previously spoke at a state committee hearing about his officers seizing approximately $160,000 and a tractor-trailer from a New York investor. The suspect claimed he was traveling to Memphis hoping to buy a convenience store. He was hesitant to tell the officers how much cash was in the vehicle. Hicks' defense of the seizure was a claim that officers suspected the man of being a terrorist. There was no evidence presented to support law enforcement's claim or reason given for that terrorist assessment. Hicks openly admitted that officers involved in these types of asset seizures have a financial incentive to take cash. "They know that if the money dries up, then they don’t have a job," Hicks said of the officers on the task force.

Dixon Interdiction Enforcement (DICE) formed in 2010 with deputies and officers from the sheriff’s departments in Dickson, Cheatham, and Humphreys counties, as well as the City of Dickson and Kingston Springs police departments. These law enforcement units patrolled Interstate 40, operating in the same manner as the 23rd Judicial Drug Task Force.

Interstate 40 became a major profit center for Tennessee law enforcement. Nashville's WTVF Investigator Phil Williams found law enforcement agencies were competing to seize cash from travelers. When asked about the rivalry between drug task force agencies, Ricky Chandler, the retired police chief in Dickson, was brutally honest. "Competition can be a good thing," the former chief said of the rivalry.

- Seizure along I-40 has become so profitable that turf wars have broken out between two rival drug task forces — the 23rd Judicial District Drug Taskforce and the Dixon Interdiction Enforcement (DICE). The station had a video of officers trying to cut members of the rival task force off so that they could stop vehicles and search for cash.

- When Channel 5’s crew visited the stretch of I-40 patrolled by the task forces, they discovered that the drug task force vehicles sitting on the highway were facing the west-bound lanes. The westbound lanes are where smugglers haul drug cash back to Mexico. The task force members were ignoring the east-bound lanes, where vehicles haul drugs to markets on the East Coast. They wanted cash, not drugs.

- A review of 21st Judicial District Drug Taskforce records showed officers made 10 times as many stops on the west-bound side of the highway as on the east-bound side.

Ricky Chandler told WTVF's Phil Williams those officers on the task forces might lose their jobs if they do not seize substantial amounts of assets or cash. "Everything’s paid for through seizures and fines," Chandler admitted.

One reason law enforcement supports civil asset forfeiture is the bottom line: yes, they include budget targets tied to asset forfeiture targets. According to a DOJ report, Tennessee’s Department of Safety and Homeland Security’s use of the program was abusive and counterproductive. A jaw-dropping expense was $112,614 spent on food, with just over $110,000 spent on catering. Even though it’s against guidelines to use forfeiture proceeds for food and beverages, the DSHS controller expected that ignorance was an acceptable excuse for the crime.

According to DOJ auditors, the Tennessee Department of Safety and Homeland Security Controller claimed, "he did not know these expenditures were unallowable," even though the guidelines were online and easily assessable by the public. The Patriot Act is the gift that keeps on giving.

A sizable part of Tennessee's population works, shops, or plays in Kentucky. So how does Kentucky handle asset seizures?

"We think we, as sheriffs, have turned a corner towards professionalism," said Jerry Wagner, the now-retired executive director of the sheriffs’ association. That statement was made despite nearly 90% of Kentucky law-enforcement agencies not reporting seizure information from 2013 to 2017 - even though it was a mandated requirement.

Wagner also expressed surprise after learning his agencies failed to report civil asset seizures. Kentucky law enforcement agencies reported seizing $61.3 million between 2013 and 2019. The oddity? Approximately 40% of the agencies delayed reporting data for years, with final reports being due between 2019 and 2020. Who knows about the validity of the data’s validity at that point?

Let's bring it closer to home with our border neighbors. In 2019, a local western Kentucky agency reported its seizures for the very first time. Oak Grove Police Chief Dennis Cunningham said he now understands the requirements for reporting civil asset seizures – many years after the state of Kentucky required them.

"But whether or not I agree with it is another thing, " Cunningham added.

Travel north to the next town and information is kept equally close to the vest in Christian County and Hopkinsville.

"According to state data, the Christian County Sheriff’s Office has only reported its seizures once in the last six years. But Lt. Scott Smith provided KyCIR with completed annual reporting forms dating back to 2013, showing the agency seized more than $28,000 from 2013 to 2018 that’s not reflected in the state’s totals. "

Hopkinsville Police Department Deputy Chief Michael Seis couldn’t explain why state data showed his agency failed to submit a report for the 2017 fiscal year. Seis provided KyCIR with a report that shows the Hopkinsville Police Department seized nearly $89,000 in the 2017 fiscal year."

"It’s obviously a problem" if agencies aren’t reporting as required by law. "It’s not complicated," said Kentucky State Sen. Whitney Westerfield, who has worked as a prosecutor in Christian County and completed forfeiture requests. "You just fill out some paperwork."

After reading examples like those listed above, a quote by Louisville Metro Police Sgt. Tulio Tourinho comes to mind, "If you don’t report it, it’s suspicious," he said. "It’s absolutely detrimental to the relationship between the community and the police, which is built on trust."

Let’s return our focus to the state of Tennessee and real-world instances of concern.

Below is a snippet from Jonathan Turley, a conservative attorney and influential political consultant, applying his view to a civil asset seizure case in Cookeville.

"A professional insurance adjuster, George Reby, was traveling through the state from New Jersey when he was stopped and asked by Officer Larry Bates if he had large amounts of cash. He said that he did — $22,000. The officer demanded the money and said that he was confiscating it on suspicion of drug activity. That is it. The mere fact that he was carrying a large amount of cash was enough under this policy to seize the money. The police know that many out-of-state travelers never come back for the cash, and they are then allowed to keep the money for their own use at the department.

Even though Reby explained why he had the money, it did not matter. The fact that he completely cooperated in allowing a full search of his car did not matter. What mattered was that the police wanted the cash.

Bates admitted he did not arrest Reby because he had committed no crime. However, he reminded drivers that "[t]he safest place to put your money, if it’s legitimate, is in a bank account." He stated he had two. I would put it in a bank account. It draws interest and it’s safer."

Bates said that he was right to take the money because "he couldn’t prove it was legitimate." That, of course, flips the normal presumption under criminal law.

To make matters more authoritarian, Tennessee law allows a judge to sign off on the seizure in an ex parte proceeding. At such hearings, only the officer’s account is considered. Ruby was never informed of the hearing.

Let's stay in Middle Tennessee and review an example from metro Nashville's Mount Juliet via Fox 17.

"Mount Juliet police showed up at a Nashville home in 2017 to arrest a man named Lance Cain. While his father, Lewis Cain, slept, police drove off in Lewis’ BWM because they suspected his son of dealing drugs.

Thomas Castelli represents Lewis, a Vietnam vet now struggling with his health. "They went into the garage from the house, opened the garage door, and drove it away," said Thomas Castelli."

The internet caught the story about a Virginia man allegedly attempting to bribe Kingsport, TN police officers following a traffic stop. Those final charges are driving on a revoked license, expired tags, simple possession (buprenorphine pills / anti-addiction meds), and possession of stolen property (license plate). The result? The Kingsport Police Department has requested approval to seize the Virginia man’s $34K Ford F-250.

And yes, West Tennessee and Memphis were excluded from the examples. There simply is not enough space to include the seizure activity found in those areas. Those Shelby County discussions become as muddled as the Mississippi River as it flows by Tom Lee Park...

So, what is the solution? Simply because Clarksville is not a community under the microscope does not mean our law enforcement officials cannot affect positive change on the state level. The proper constitutional approach for Tennessee is to abandon civil asset forfeiture entirely and replace it with criminal asset forfeiture. Clarksville PD and Montgomery County SD have a well-earned, positive reputation in the state, and their voices could make a difference in establishing stronger legal standards and guidelines.

  • A person should be convicted criminally before the government may seize the property involved.

  • The government should be required to conduct an adversarial preliminary hearing regarding a seizure.

  • The standard of property forfeiture should be beyond a reasonable doubt.

  • The property seized should be limited to the items used to help the criminal enterprise.

  • Civil asset forfeiture proceeds should be turned over to the federal government's general fund to allow for the fair distribution of the proceeds among federal governmental agencies.

Other states, such as Arizona, Nebraska, and New Mexico, have passed civil asset forfeiture reforms in recent years, demonstrating that this issue is not isolated to our region. Asset forfeiture must be conducted responsibly and in a way that respects people’s rights and protects the innocent. We must uphold our due process protections while directing the burden of proof back to the government, not the property owner.

You can track Tennessee Bill SB362 here ...