Georgia Civil Forfeiture - Legislative Backgrounder

Legislative Backgrounder

Georgia Legislators Must Reform the State’s Civil Forfeiture Laws To Protect Due Process and Private Property Rights

 


The Issue in a Nutshell

Civil forfeiture threatens the property rights of all Americans. These laws allow the police to seize your home, car or other property upon the mere suspicion that it has been used or involved in criminal activity. Unlike with criminal forfeiture, under civil forfeiture, law enforcement agents never have to even accuse you of any crime, let alone convict you of any criminal wrongdoing.

This is what has happened to countless people across Georgia, people like Ms. Alda Gentile. A New Yorker returning home from purchasing a condo in Florida in 2012, Gentile was stopped on Interstate 95 in southeast Georgia by police who seized more than $11,500. Police used a drug dog to sniff her car but no drugs were found and no charges (other than speeding) were filed. After a six-hour detention, Gentile and her family were allowed to drive off but police kept her cash. Gentile eventually got her money back, but to do so she had to hire a local attorney and fight the police force.

Gentile’s story is not unique. Innocent property owners like Paula Peterson of Alma also experienced the nightmares caused by the inevitable abuse that comes from civil forfeiture laws. Paula’s daughter drove her late father’s SUV to and from work from her home in Alma.  The police later accused the daughter and her roommate of possessing drugs.  Within hours of the arrest, the roommate admitted she was solely responsible for the drugs.  But the police still seized Paula and her husband’s SUV simply because it was parked outside of their daughter’s home and did not return it to Paula for almost five months, even though drugs were never found in the SUV.

Georgia has the worst civil forfeiture laws in the South and among the worst in the nation. Making matters worse, civil forfeiture laws create a perverse financial incentive for law enforcement agencies to abuse these laws because their agencies get to keep the cash and other assets that they seize. Up to 100 percent of forfeited property goes to police and prosecutors’ budgets; the more property police seize the more money they get for bigger and better offices, cars and more.

The Institute for Justice, a public interest law firm that fights civil forfeiture abuse across the country, has joined with other civil rights organizations to call on the state legislature to reform these laws in the 2014 legislative session. It is time for Georgia’s lawmakers to end the abuse of civil and property rights.

As a first step, Georgia’s state legislators should enact HB-1, a bill that requires law enforcement to report to the Carl Vinson Institute at the University of Georgia what police agencies seize and how police and prosecutors use forfeiture proceeds. But legislators should do more. In coming years, Georgia should adopt the model legislation developed by the Institute for Justice. The legislation is based on the following three principles: (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 quickly get back seized property; and (3) police and prosecutors’ offices should not profit from enforcing forfeiture laws.

 

Introduction

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 due process and 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 ACLU of Georgia, the Southern Center for Human Rights, Americans for Prosperity, Tea Party Patriots of Atlanta, other groups and Georgia residents to form Georgians for Forfeiture Reform (GFFR).  Its goal is to end the abuse of civil and property rights.

GFFR 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.”

GFFR calls for the state legislature to act. In the 2014 session, lawmakers must reform civil forfeiture laws that are unjust by enacting common-sense reforms that improve reporting and are 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.

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 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.  “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.

espite this clear command, many Georgia law enforcement agencies simply fail to report their forfeitures.   Millions upon millions of dollars flow every year through law enforcement coffers without notice to outside elected officials or taxpayers.  But a 2011 lawsuit forced some agencies to begin filing state forfeiture reports, and a new requirement that agencies post these reports online is starting to take effect.  An interim report examined state forfeiture reports made public so far and concludes that forfeiture reporting in the Peach State is still rotten:[10

  • Reports filed by 58 law enforcement agencies as of July 2012 for the year 2011 reveal $2.76 million in forfeitures. Half the properties taken were worth less than $650.
     
  • By contrast, federal reports show 147 Georgia law enforcement agencies taking in more than $32 million in forfeiture revenue in 2011 through federal forfeiture procedures, making Georgia one of the most aggressive states in the nation for federal forfeiture.
     
  • Of those 147 agencies, 122 have not yet filed a state forfeiture report, even though at least 51 have published legal notices indicating they are also pursuing state forfeitures.
     
  • Many state reports that have been filed lack even basic details necessary for proper public oversight, such as what was taken and when, how much it was worth and what was done with the proceeds.

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, report what they are doing, 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.[11]
     
  • 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.[12]
     
  • 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, the house was lived in for a year—rent-free—by a police officer as part of his duties.[13
     
  • 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.[14]
     
  • On September 19, 2012, Ms. Alda Gentile, her teenage son Cody and her infant grandson Daniel were driving home to New York from Florida after inspecting a potential condo to purchase. Fourteen miles inside Georgia on I-95, they were pulled over for speeding by Georgia State Troopers. During the stop, officers asked the Gentile family if they had any bombs, drugs, guns or money in the car. Ms. Gentile mentioned a container of money in the trunk—$11,530 left over from a down payment on the prospective condo. The troopers immediately fixated on the cash. They brought in a drug-dog to search the vehicle but found nothing. Nevertheless, after holding the Gentiles on the side of the road for six hours and charging them with no crime (other than a speeding citation), the police seized the cash and sent the Gentiles on their way. After consulting with her attorney-brother, Ms. Gentile engaged a Georgia lawyer and served notice on the state, an action that eventually led to the return of her money almost a month later.[15]

 

HB-1 and Model Forfeiture Legislation 

Representative Wendell Willard, Chairman of the House Judiciary Committee, reintroduced HB-1 in the 2014 legislative session. The bill consolidates all of Georgia’s forfeiture law in one statutory section of the state code and improves reporting requirements.

There are some small changes that the legislators should make to the bill during the legislative. They include:

  • requiring police agencies to report if the property owner was convicted of a crime;
     
  • clarifying the level of knowledge an innocent owner must have to lose her claim to the property; and
     
  • ensuring that property owners’ claims are not dismissed because of failing to meet hyper-technical filing requirements for court documents.

With those changes made, GFFR supports the enactment of HB-1.

Additionally, 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[16] that is premised on three simple but profound ideas:

  • A conviction should be required before final title to property is transferred to the state;
     
  • An innocent owner who is not suspected of any wrongdoing should easily and quickly get back property that law enforcement has seized; and
     
  • 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.

During this legislative session, GFFR will argue for more comprehensive reforms in the future.

 

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 comprehensive reporting requirement and lay the foundation for enactment in coming years of a completely new 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 IJ’s 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.[17] Within a margin of error of plus/minus two percent, the vast majority of Americans believe:

  • People should be convicted of a crime before law enforcement keeps their property (66 percent agree vs. 17 percent disagree).
     
  • 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).
     
  • A property owner 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).
     
  • 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).
     
  • 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 as members of Georgians for Forfeiture Reform are representatives from a broad coalition of Georgia-based organizations, including the ACLU, Southern Center for Human Rights, Americans for Prosperity and Tea Party Patriots and other groups and Georgia residents.

Joining the Institute for Justice as members of Georgians for Forfeiture Reform are representatives from a broad coalition of Georgia-based organizations, including the ACLU, Southern Center for Human Rights, Americans for Prosperity and Tea Party Patriots and other groups and Georgia residents.

 

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

The Institute for Justice is the national law firm for liberty, and the nation’s leading legal advocate for property rights and economic liberty.  The Institute has come to the defense of property owners nationwide to fight unjust civil forfeiture actions, including the owners of the Motel Caswell in Massachusetts; the owner of a small commercial building in Anaheim, California; and the owner of a truck seized in Houston, Texas.[18]


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, legislation, 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

 

 

 



1. Civil Action 2011 CV2575B filed Oct. 10, 2011 in Georgia Superior Court of Gainesville.

2. Civil Action 2009 CV00395 filed Feb. 13, 2009 in U.S. District Court for Northern District of Ga.

3. O.C.G.A, §§ 16-13-49(n) (2).

4. O.C.G.A, §§ 16-13-49(n) (6).

5. Williams, M. R., Holcomb, J. E., Kovandzic, T. V., Bullock, S. (2010). Policing for Profit: The abuse of civil asset forfeiture, Institute for Justice.

6. O.C.G.A, § 16-13-49(u) (4).

7. Williams, M. R., Holcomb, J. E., Kovandzic, T. V., Bullock, S. (2010). Policing for Profit: The abuse of civil asset forfeiture, Institute for Justice.

8. Georgia Statutes, § 16-13-49(u) (4) (c) (iii).

9. The Institute for Justice discovered this through requests to various local law enforcement agencies under Georgia’s open records law. See Erin Norman and Anthony Sanders, Forfeiting Accountability: Georgia’s Law Enforcement’s Hidden Civil Forfeiture Funds, March 2011. Institute for Justice. Available at http://www.ij.org/about/3738

10. Dick M. Carpenter II and Lee McGrath, Rotten Reporting in the Peach State, Institute for Justice, January 2013. Available at http://ij.org/images/pdf_folder/other_pubs/rotten-reporting.pdf 

11. Emily Heglund, Feds say ex-sheriff misspent $663,000, The Tribune & Georgian July 17, 2009. 

12. Chloe Cockburn, Easy Money: Civil Asset Forfeiture Abuse by Police, Feb. 3, 2010. ACLU Blog. Available at http://www.aclu.org/blog/racial-justice/easy-money-civil-asset-forfeiture-abuse-police

13. Mara Shalhoup, Control your tenants or lose your home, Creative Lofting Atlanta May 22, 2002. Available at http://urbex.clatl.com/gyrobase/control_your_tenants_or_lose_your_home/Content?oid=8842

14. Joshua B. Good, Coughing up for crackdown, A federal operation forces property owners to fight drugs at their own expense, The Atlanta Journal Constitution, July 30, 2001.

15. New York Woman with Down Payment on Condo Stopped. (2012, October 5). Camden County Press, pp. 1, 6.

16. Available at: http://ij.org/legislation/3700

17. Institute for Justice, “Public Opinion and Forfeiture,” June 2011. Available at: http://www.ij.org/images/legislation/california/forfeiturepoll.pdf Percentages do not sum to 100 due to non-responses.

18. See, the Institute for Justice’s forfeiture cases at http://ij.org/cases/privateproperty

 

 

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