Litigation Backgrounder

Civil forfeiture—where the government can take and sell your property without ever charging you with a crime, let alone convicting you of one—is one of the greatest threats to property rights in the nation. To make matters worse, such forfeitures often pad law enforcement officials’ budgets, giving them a direct financial incentive to abuse this power. Georgia has some of the worst forfeiture laws in the nation.

Under Georgia’s forfeiture laws, the police can seize your property and claim ownership of it without charging or convicting the owner with a crime. Unlike criminal forfeiture where the owner is on trial, and the property is forfeited only if the owner has first been convicted of a crime, civil forfeiture is where the government charges your property with breaking the law and then requires you to defend the innocence of your property in court. That is why civil forfeiture proceedings have bizarre titles, such as the State of Georgia v. $1,324.00 in U.S. Currency[1] or The United States of America v. One 2002 Toyota Sequoia.[2]

Getting your property back can be time-consuming and expensive. Property owners in Georgia have as few as 30 days from receiving notice or seeing publication in a newspaper to file a claim for the return of their property. Those who are unfamiliar with the legal system must quickly find lawyers skilled in forfeiture and willing to take their cases. Failure to meet the deadlines results in the property being permanently lost to the state.[3] There is no appeal for failing to file an initial claim to the property.[4]

The Institute for Justice has joined with the NAACP, the Southern Center for Human Rights, the Georgia Public Policy Foundation, the Georgia Association of Criminal Defense Lawyers and Georgia residents to end the abuse of civil and property rights.

This coalition recognizes that Georgia’s current law gives the wrong signals to the otherwise honorable men and women of law enforcement, creating a perverse incentive for them to “police for profit.”

The coalition calls for the state legislature to act. In the 2012 session, lawmakers must reform civil forfeiture laws that are unjust by enacting commonsense reforms designed to protect private property while at the same time allowing law enforcement to take ill-gotten property from those convicted of a crime.

Making meaningful changes to state law is never easy, but legislators must recognize that law enforcement and prosecutors’ resistance to forfeiture reform has little to do with public safety and much to do with protecting their ability to pad their budgets.

Georgia’s Forfeiture Law Is among the Worst in the Nation

Most states and the federal government have civil forfeiture laws and Georgia’s is among the five worst in the nation. A 2010 report by the Institute for Justice, called Policing for Profit, gave Georgia a D- for its civil forfeiture laws and practices; only four other states received similarly low grades.[5]

One of the reasons Georgia scored such a low grade is because up to 100 percent of forfeiture money can go to law enforcement under Georgia law.[6] This provides Georgia police with a strong incentive to pursue property instead of the neutral administration of justice. It also provides law enforcement with large amounts of cash and other assets that they do not have to get through the normal budgetary channels, i.e., convincing elected representatives to levy taxes or issue bonds. This money and property becomes a “self-funding” mechanism exempt from the democratic process.

The most recent statistics show that Georgia’s police and prosecutors share in more than $50 million in forfeiture proceeds a year. This is made up of forfeitures conducted under state law that were last reported at $38 million and forfeitures conducted under federal law that average more than $14 million annually between 2000 and 2008.[7]

To prevent civil forfeiture proceeds from becoming an off-the-books slush fund, Georgia law requires local law enforcement agencies to annually report and itemize all property obtained through civil forfeiture as well as what they do with it. The law is clear: “Any local law enforcement agency receiving property under [the forfeiture statute] shall submit an annual report to the local governing authority. The report shall be submitted with the agency’s budget request and shall itemize the property received during the fiscal year and the utilization made thereof.”[8]

Despite this clear command, many Georgia law enforcement agencies simply fail to report their forfeitures.[9] Millions upon millions of dollars flow every year through law enforcement coffers without notice to outside elected officials or taxpayers. The temptation for abuse is obvious. As documented with specific examples below, the money and proceeds from the sale of seized property can easily turn into a slush fund.

Law enforcement should follow the law. In Georgia, however, local law enforcement agencies routinely ignore a simple reporting law that requires them to itemize all money and other property they acquire through civil forfeiture, and report what they do with those assets. Georgia’s civil forfeiture laws themselves are bad, but evading their reporting requirements makes the state’s problem even worse. For all these reasons, Georgia lawmakers must reform forfeiture laws in the state to ensure law enforcement agencies uphold the law and at the same time respect the rights and property of those they are sworn to protect and defend.

Examples of Civil Forfeiture Abuse in Georgia

 Georgia’s forfeiture laws are structurally flawed, giving law enforcement agencies enormous financial incentives to seize assets with little regard for civil or property rights. Many Georgia residents have been caught in the web of the state’s bad forfeiture laws.

• Investigators for the U.S. Department of Justice found more than $700,000 in questionable expenses during the audit period of July 1, 2004 to April 30, 2008 in Camden County alone. The Sheriff’s Office there collected more than $20 million in seized assets in the 1990s and early 2000s. Camden County Sheriff Bill Smith was voted out of office after the public learned that he used seized assets to purchase a $90,000 Dodge Viper and a $79,000 boat, among other dubious expenditures.[10]
• On November 18, 2009, Shukree Simmons was driving with his business partner from Macon to Atlanta after selling his Chevy Silverado truck. He was pulled over by a police officer, who searched both of them and the car, but found no evidence of any wrongdoing. A dog was brought in to find traces of drugs, but nothing was found. Notwithstanding this fact, the officer took $3,700 from Simmons who later mailed the police a copy of the certificate of sale and the title for the car, but still was told he would need to initiate legal action against his property. The money was returned when the ACLU litigated the case in 2009.[11]
• Imelda Balli, a single mother, witnessed her two sons being arrested in 2002 for dealing drugs from the house she owned and rented to them. The prosecutors used the criminal courts to convict her sons. They then turned to the civil court to take Mrs. Balli’s house, even though she did not live there and was not involved in any wrongdoing. After renovation by a not-for-profit agency, a police officer lived in the house rent-free for a year as part of his duties.[12]
• Tasha Greer, owner of Hollywood Plaza, a tiny strip mall in northwest Atlanta, asked government officials for years to help rid the area of drug dealers. The government told her to hire off-duty police officers to patrol the strip mall. If she didn’t, the government threatened to take her property.

Model Forfeiture Legislation

 To help states reform their forfeiture laws, the Institute for Justice commissioned a team of experts to draft a model forfeiture law that every state legislature can adopt completely or in part. This model legislation is an important component of any effort to ensure that every American’s property is safe from abuse by the government’s self-enriching enforcement of civil forfeiture laws.

Building on the laws in the handful of states, such as North Carolina’s, the Institute for Justice published a comprehensive model legislation[13] that is premised on three simple but profound ideas:

1.     A conviction should be required before final title to property is transferred to the state;

2.     An innocent owner who is not suspected of any wrongdoing should easily and quickly get back property that law enforcement has seized; and

3.     Law enforcement should not have its priorities distorted by a system that disproportionally rewards police and prosecutors for pursuing certain crimes because they include the possibility of asset forfeiture.

Call for Legislative Action

 It is no accident that the forfeiture process is so convoluted that even an innocent bystander needs a lawyer and must wait months for a hearing to get property back after it has been wrongly seized.

It is time for the Georgia Legislature to enact a new and comprehensive forfeiture regime that protects private property and replaces the current system that is designed to take property and to enrich the budgets of law enforcement agencies rather than to pursue the neutral administration of justice.

The American public overwhelmingly supports the major features of the model asset forfeiture law. In a random sample of 1,000 participants conducted in November 2010, Americans across the country said they favor greater protections for property owners and removing financial incentives for law enforcement to profit from asset forfeiture.[14] Within a margin of error of plus/minus two percent, the vast majority of Americans believe:

1. People should be convicted of a crime before law enforcement keeps their property (66 percent agree vs. 17 percent disagree).
   
   
2. Law enforcement should have to prove beyond a reasonable doubt that the property was involved in a criminal activity before it can keep the property.       (73 percent agree vs. 10 percent disagree).
   
   
3. Property owners should be presumed innocent and the government should be responsible for proving the owner’s guilt before it can keep the property. (74 percent agree vs. 9 percent disagree).
   
   
4. Law enforcement agencies should not be allowed to keep property for their own use.       It should be placed in a state general fund or some other neutral account. (70 percent agree vs. 13 percent disagree).
   
   
5. State and local agencies should not be allowed to take property under federal law to make civil forfeiture easier and receive more in proceeds than under state law. (67 percent agree vs. 15 percent disagree)

Not only do these responses support the model asset forfeiture law, they also make an additional important point: Only a minority of respondents (9 percent to 17 percent) supports the major features of Georgia’s current forfeiture law. Legislators can take comfort in knowing that doing the right thing for civil and property rights is also doing the overwhelmingly popular thing.

The Legislative Coalition

The lead attorney for this legislative initiative is Lee McGrath, the Institute for Justice’s legislative counsel. McGrath has successfully lobbied for laws protecting property and economic rights in Arkansas, Minnesota, Oklahoma, Texas and other states.

 Joining the Institute for Justice are representatives from a broad coalition of Georgia-based organizations, including the NAACP, Southern Center for Human Rights, the Georgia Public Policy Foundation and the Georgia Association of Criminal Defense Lawyers.

The Institute for Justice: A History of Protecting Private Property Rights

The Institute for Justice has a long and successful history of litigating in support of constitutionally enshrined individual rights, including the right to own private property free from unconstitutional governmental interference.  IJ’s headquarters and state chapters have scored significant victories on behalf of individuals and businesses throughout the nation.  A few of these important property rights victories include:

• Van Meter v. Turner—IJ represented Georgia citizens to hold local law enforcement agencies—the Atlanta Police Department, Fulton County Police Department and Fulton County Sheriff—accountable under Georgia’s forfeiture reporting law. Georgia law requires that law enforcement agencies publish a report each year of all forfeitures they conduct and indicate how the money they receive is used. Despite the clear legal requirement to do so, these agencies never made such information public until IJ brought them to state court.
  
  
• City of Norwood v. Horney—In a resounding repudiation of the U.S. Supreme Court’s decision in Kelo v. City of New London, the Ohio Supreme Court unanimously ruled in July 2006 that the city of Norwood acted unconstitutionally in its efforts to abuse eminent domain and take the homes of the Institute for Justice’s clients for a privately owned mall.
  
  
• Kelo v. City of New London—Just six years after the landmark U.S. Supreme Court ruling in Kelo v. City of New London, which allowed private property to be taken for economic development, 44 states have tightened their restrictions on eminent domain. In 2007, IJ client Susette Kelo’s little pink cottage—the home that became a national symbol of the fight against eminent domain abuse—was moved so that it would not be demolished by the government’s wrecking ball.
  
  

The Institute for Justice

The Institute for Justice is a public interest law firm that advances a rule of law under which individuals can control their destinies as free and responsible members of society.  Through litigation, communication, outreach and strategic research, IJ secures protection for individual liberty and extends the benefits of freedom to those whose full enjoyment is denied by the government.

The Institute for Justice is based in Arlington, Va.  IJ has state chapters in Arizona, Florida, Minnesota, Texas and Washington, as well as a Clinic on Entrepreneurship at the University of Chicago Law School.

For more information contact:

Shira Rawlinson
Communications Coordinator
Institute for Justice
srawlinson@ij.org
(703) 682-9320