The Florida Masochist: The Knuckleheads of the Day award

Today's winners are the Tennessee Department of Revenue and its Commissioner Reagan Farr. They get the award for the following.

Starting [Thursday], state Department of Revenue agents will begin stopping Tennessee motorists spotted buying large quantities of cigarettes in border states, then charging them with a crime and, in some cases, seizing their cars.

Critics say the new “cigarette surveillance program” amounts to the use of “police state” tactics and wrongfully interferes with interstate commerce. But state Revenue Commissioner Reagan Farr says his department is simply doing its job, enforcing a valid state law while protecting Tennessee retailers who properly pay state taxes.

Agents have already been watching out-of-state stores that sell cigarettes near the Tennessee border to “get a feel where problem areas are,” Farr said. While declining to be specific, the commissioner said “problem areas” are generally along interstate highways with exits near the Tennessee border.

The idea is for the monitoring agent to spot a person buying cigarettes in volume at an out-of-state market, then departing in a vehicle with Tennessee license tags. Starting today, monitoring agents spotting such a suspect will call an arresting agent who will stop the car when it enters Tennessee, he said.

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Tennessee’s cigarette tax went from 20 cents per pack to 62 cents per pack effective July 1. All eight states that border Tennessee have lower tax rates, meaning smokers can save up to 45 cents per pack — $4.50 for a 10-pack carton — by purchasing out of state. The border states with the lowest cigarette taxes are Missouri with 17 cents and Mississippi at 18 cents. The highest is Arkansas with 59 cents. Kentucky and Virginia both tax cigarettes at 30 cents a pack, North Carolina at 35 cents, Georgia at 37 cents and Alabama at 42.5 cents.

Under state law, bringing more than two cartons of cigarettes into the state without paying Tennessee taxes is a “Class B” misdemeanor, carrying punishment of up to six months in jail and/or a $500 fine. Bringing 25 or more cartons is a “Class E” felony, with minimum penalty of one year in prison and a maximum of six years plus a fine of up to $3,000. In addition, the specific state statute dealing with untaxed cigarettes provides that vehicles used to transport more than two cartons “are considered contraband and are subject to seizure,” says a Department of Revenue statement.

Farr said that agents have been instructed to seize any vehicle carrying more than 25 cartons of cigarettes without Tennessee tax stamps. In cases where three to 24 cartons are involved, he said vehicle seizure is “at the officer’s discretion.”

A person losing their car over purchasing cigarettes is an outrageous abuse of government. James Joyner at OTB writes-

How this can possibly be constitutional is beyond me. First, what gives Tennessee police officers the authority to operate across state lines? Second, surely seizing a vehicle potentially worth upwards of $40,000 for the “crime” of possessing more than two cartons of cigarettes amounts to excessive punishment under the 8th and 14th Amendments?

Donald Sensing also notes a little something called the Commerce Clause.

Ed at Captain's Quarters writes-

I can't wait for the first legal challenge to this enforcement. As far as I can see, it violates federal sovereignty in interstate commerce, the 4th amendment, and the spirit of the entire Constitution. Let's try to tackle this one issue at a time.

First, Tennessee has no jurisdiction over what stores in other states sell, even if the material was illegal, which tobacco is not. They can't conduct surveillance in Missouri, for instance. The fact that they are "watching out-of-state stores that sell cigarettes" should be enough to demand some resignations, starting with the commissioner himself.

Second, people do have the right to cross state lines to purchase legal commodities. If Tennessee wants to hike its cigarette taxes far beyond its neighbors, then it's the state's fault that its shop owners can't compete. It's not the fault of the consumer who makes a smart choice to cross the border and buy in bulk. Unless the product itself is illegal, the state of Tennessee has no right to interfere in that transaction.

What trips the wires of Tennessee's enforcement? As few as three cartons, according to the commissioner and Tennessee state law, which makes that a misdemeanor. Twenty-five cartons will result in auto forfeiture, between one and six years in prison for a felony conviction, and a $3,000 fine. None of this has to be predicated on an explicit act to bootleg the cigarettes, either, but merely possession of a legal product.