Civil asset forfeiture in Tennessee criticized, some warn of policing for profit

NASHVILLE, Tenn. (WZTV) — When police in Tennessee make a traffic stop, they have the right to seize your property. The most commonly seized items: a car and cash.

And when they take those, whether the owner is arrested or convicted of anything, the department now owns the property, and it is very hard to get it back.

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.

That process is called civil asset forfeiture -- originally designed to let police take the spoils of the job from drug dealers.

“There's a lot of ways it can be abused,” Castelli opines.

A Tennessee inspector general's report on seizing property says this practice has gone off the rails. Memphis Police face a lawsuit for an illegal seizure, and Cain is suing Mt. Juliet police. It took him months to get his car back – only thanks to a technicality.

Police departments get to keep what they seize which some say gives them incentive to seize valuable items.

“I had a client when I was a defense attorney and I had the officer tell me about a year later. Oh yeah, this is your former client's former car,” said District Attorney Glenn Funk at a conference last year. “In fact when I saw that he had bought the car, I was anticipating someday that car would be mine.”

At that public hearing, District Attorney Glenn Funk said he is concerned about the incentive that civil asset forfeiture gives police to seize more property like Cain's BMW that did not even belong to the accused criminal.

“I don't think that we give anybody a gun and a badge and say go and improve your own life,” Funk said in the course of detailing how no allegations of wrong doing point to Nashville police – rather others across the state. “You're there to protect and to serve.”

Complicating matters further -- the inspector general's report says Tennessee's department of safety misused more than $100,000 brought in over the last several years, buying food, banquets and other things that do nothing to keep the community safer.

“The problem with civil forfeiture, particularly as it is practiced in Tennessee, is that there is an enormous profit motive among law enforcement to engage in forfeiture unrelated to any actual criminal proceedings,” said Daniel Horwitz, a Nashville attorney.

There is another option: criminal asset seizure has to hold up in a court of law.

“In the criminal process, you have a right to a lawyer,” Horwitz continued. “In civil asset forfeiture which is a civil procedure, you do not have a right to a lawyer, and the burden of proof is reduced.”

Lewis Cain wants others to avoid the fate he suffered. His belief: a family member’s crime doesn’t create open season the entire family’s possessions. The Supreme Court has now given Americans a real chance to win some of their property back if a court decides that what was taken amounts to an ‘excessive fine.’

In a rare unanimous decision, justices sided with an Indiana man saying taking a $42,000 car for dealing $200 worth of drugs is simply too high of a penalty to pay.

Mount Juliet police released the following statement last year when Cain’s lawsuit was first filed.

“It is unfortunate that Mr. Lewis Cain’s car was seized due to his son’s actions of selling cocaine from the car. After a lengthy investigation, Mt. Juliet police detectives secured three felony indictments from a Wilson County Grand Jury in September 2017 in relation to 50-year-old Lance Cain, a convicted felon and the son of Mr. Lewis Cain, distributing illegal drugs. During the investigation, detectives witnessed Lance Cain selling cocaine from Mr. Lewis Cain’s car multiple times, and over 6 grams of cocaine was seized during the investigation.

Therefore, the car was seized during the arrest of Lance Cain on September 18, 2017 when he was arrested on a 3-count indictment for the Sell of a Schedule II Drug- Cocaine. A detective’s error in the seizure process led to the Mt. Juliet Police Department agreeing to a voluntary dismissal of the asset forfeiture, and the department worked to immediately return Lewis Cain’s car back to him. The actions of Lance Cain should not be a reflection on his father, Mr. Lewis Cain, who admirably served our Nation in the armed services. The department appreciates Mr. Lewis Cain’s service to our Country.”