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From Hal Rounds, the Somerville (TN) attorney who authored House Bill 1078:

The Asset Forfeiture bill for 2013 has passed committees in both the Tennessee House and Senate, which is good news.  The bad news is that the bill was entirely rewritten first.

In what is called an amendment, the entire wording of the bill (HB1078 in the House) was literally deleted and new wording replaced it.

The original bill provided a “second opinion” had to be obtained from a judge before the cop who stops you on the roadside could take your stuff – cash, car – even your house.  Only after the judge had approved the sense of the officer that there was probable cause to support the claim that your property had been the proceeds of or used to perpetrate an illegal act could the seizure warrant be issued, and your stuff be taken by the officer.  Then you would still have the opportunity to defend your ownership in court:  If you were found innocent, or not prosecuted at all, then your stuff had to be returned to you.

Under present law, the officer takes your stuff, gives you a receipt that tells you he has it, and you can file suit to recover it – after a forfeiture warrant turns ownership over to the agency involved.  The officer’s alleged “probable cause” is heard by the judge in an “ex parte” hearing – you are forbidden to be present as ownership of your things is disposed of.

That is what we had hoped to end.

What the amendment – the complete rewriting, actually – accomplished was to change the forfeiture hearing from ex parte to one where you are invited to defend your ownership, and show that there was no crime or other excuse to take your stuff.  That is a big step, and beneficial, for sure.  But it still allows them to take your stuff, and you have to go through a legal procedure where you are standing alone against an entire institution of experienced and authoritarian professionals, to show that you are not guilty of any illegality, and neither is your stuff.

The District Attorneys of the state could not hide their complicity in “Policing for Profit,” and had to agree that the current process in simply inexcusable.  But they persuaded – with the help of the bill’s sponsor, I have to say – the committees that there was a necessity to allow the takings on-the-spot to remain in the law.

Again, Representative Barrett Rich is to be commended for bringing the subject to the Assembly.  And the result will, indeed, be a significant improvement in property right protection.  But significant and sufficient are two different things.

 

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1 Response » to “Tennessee Lawmakers Gut Forfeiture Reform Proposal, Push for Ex Parte Determinations of Probable Cause”

  1. Tennessee Lawmakers Gut Forfeiture Reform Proposal, Push for Ex Parte Determinations of Probable Cause

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