Middle Georgia Sheriff: Forfeiture proposal unwarranted
A proposal being considered in the Georgia General Assembly would reform the state's forfeiture laws, raising the state's burden of proof needed to seize cash and cars as evidence.
Baldwin County Sheriff Bill Massee says his office seizes around $15,000 dollars and 4 to 5 cars a year. Massee says that revenue would be lost if House Bill 1 becomes law.
"I think all of law enforcement was shocked, we went from a very simple seizure law that we've been utilizing for years to a proposed 92-page bill," Massee said.
The proposal, which is still in committee, would make it harder to keep evidence seized during an investigation by raising the burden of proof from a "preponderance" to "clear and convincing" evidence. Massee says money seized by law enforcement would also go back to county or city governments, instead of directly to the arresting agency.
"If you look at the money that has been utilized by local law enforcement agencies without using one cent of taxpayers money, it's amazing at the good proactive services that we've provided for the citizens in our community," Massee said.
Massee says his agency uses the money to provide drug education to juveniles, facilitate community outreach programs, and outfit his deputies with much needed equipment.
A talking points bulletin for HB1 provided by the office of Rep. Wendell Willard (R) - Sandy Springs, the bill's sponsor, says Georgia received a D- rating from the Institute for Justice report for its civil forfeiture laws. A staffer in Willard's office says the bill will provide more due process and greater transparency.
Massee says the old rules work just fine.
"The county commissioners are familiar with our procedures and I can document every dollar, and i would say that most sheriffs can," Massee said.
If the bill becomes law, Massee says more money will need to be budgeted for drug education and equipment for his deputies, a move he feels is unfair to taxpayers in Baldwin county. He just hopes state lawmakers feel the same way.
A talking points bulletin from Willard's office:
HB 1 – the Georgia Uniform Civil Forfeiture Procedure Act
HB 1 History
Civil forfeiture laws represent one of the most serious assaults on private property rights in the nation today. It is the power of law enforcement to seize cash, cars, home and other property on the suspicion the property was involved in criminal activity. In a recent Institute for Justice report, Georgia was given a D- for its civil forfeiture laws and practices with only four other states receiving similar low grades.
During 2011 and 2012, a Forfeiture Rewrite Work Group met to review current forfeiture law and determine whether there was a need to standardize the provisions and consolidate into one primary code section to help assure process was followed. At the request of Chairman Wendell Willard, a representative from the Georgia Association of Criminal Defense Attorneys, the Prosecuting Attorney’s Council, Attorney’s General office and the Administrative Office of the Courts met and discussed in depth current forfeiture law. With the help of Legislative Counsel, the work group drafted a new Uniform Civil Forfeiture Procedure Act (UCFPA) which will be located in Chapter 16 of Title 9, Civil Practice.
HB 1 Brief Summary
• UCFPA establishes comprehensive civil forfeiture proceedings.
• It is taken from the drug forfeiture statute that has guided the vast majority of forfeitures in this state for the last 20 years. However, the new UCFPA is divided into separate code sections to make it easier to read and understand.
• improves the current law in Georgia by providing procedural safeguards for defendants by placing it within Title 9, as a civil law proceeding,
• greater protection for innocent owners by raising the state’s burden from preponderance of evidence to clear and convincing,
• more transparency and accountability by strengthening the mandatory reporting requirement of all law enforcement agencies.
• ensures that those individuals proven guilty of a crime do not keep the fruits of their crime.
• strikes a much needed balance in forfeiture law protecting individual property rights and public safety against those involved in criminal enterprises.
Policy Responses to Expressed Concerns
1. Raises the Burden of proof from preponderance of the evidence to clear and convincing evidence
• The first two paragraphs of the Constitution of the State of Georgia states
i. “No person shall be deprived of life, liberty, or property except by due process of law.”
ii. “Protection to person and property is the paramount duty of government and shall be impartial and complete. No person shall be denied the equal protection of the laws.
• When a person’s liberty is at jeopardy in criminal cases, the standard is at the highest level which is ‘beyond a reasonable doubt’
• In HB 1, we raised from the lowest standard of ‘preponderance of evidence’ to a middle, intermediate ground of ‘clear and convincing’
i. AM 29 2095 will be proposed in committee to provide a definition for ‘clear and convincing’
2. Lowers the ceiling for non-judicial forfeitures from $25K to $5K
• By lowering the ceiling, HB 1 provides greater due process for smaller claims and gives greater protection to the public
3. Eliminates from the definition of contraband "All weapons possessed, used, or available for use in any manner to facilitate a violation of this article…" making it more difficult to forfeit weapons used in the drug trade.
• In HB 1, ‘property’ is defined as “anything of value,” so weapon is included in that definition
• In addition, HB 1 allows for the forfeiture of weapons within close proximity
• However, to ensure that this concern is covered, AM 29 2103 will be proposed in committee.
i. The amendment expands that any weapon used in any manner to commit crime may be forfeited
ii. HB 1 does not change the policy set by the General Assembly in SB 350 that an innocent owner's firearm be returned to them when the firearm is no longer needed for evidentiary purposes.
4. Reduces the requirements for a sufficient claim; and requires that even if an insufficient claim is served on the State, the State must file a complaint for forfeiture.
• HB 1 simplifies the standard for initiating a claim to recover property wrongfully seized for forfeiture
• We want to avoid the “gotcha” situation where a person who files a response and is unable to do so by the “letter of the law” and ends up losing their right in the property
5. Reduces and waters-down the requirements for a sufficient answer to in rem and in personam judicial forfeitures.
• HB 1 again streamlines and simplifies the judicial process for making responses to claims of forfeiture
6. Deletes the language which provides that reasonable costs, including attorneys’ fees shall be awarded to the State where the claimant fails to prove a substantial portion of the claimed interest is exempt from forfeiture.
• We want to avoid the chilling effect It is not good policy to have people who fail to prove his or her case to also be hit with attorney’s fees on top of losing property
• Neutral for both parties --> The deletion of the language levels the playing field for both sides
7. Expands part of the definition of “interest holder” from “the beneficiary of a perfected security interest” to that of “the claim of a beneficial interest.”
• There was a difference in the way the forfeiture statute defined ‘interest holder’ and the way the RICO statutes defined it. HB 1’s definition is a merger of the two.
• Creates a right of anyone who has a claim to property to appear before the court and defend that interest
8. Places an undue burden on law enforcement to contact every registered owner of a seized vehicle upon seizure of the vehicle.
• A phone call to motor vehicles and requesting a registered owner’s information would satisfy the requirement
9. Adds discovery provision to in rem and in personam forfeitures
• UCFPA is now in Title 9, so HB 1 allows either side to make an application to the court for discovery if the party believes there is a need
i. Discovery is at the discretion of the court
• Neutral provides a safeguard for the state as well as the property owner.
10. Requires currency not needed for evidentiary purposes to be submitted to the clerk of superior court within 60 days of seizure.
• Again, UCFPA is now in Title 9, and in civil matters if ownership of funds is in question, it is placed with clerk of court
11. Places an undue burden on law enforcement by providing that federally forfeited property and funds received by law enforcement agencies are subject to the State reporting requirements of § 9-16-20 (f).
• All forfeiture funds are public property
• HB 1 requires that parties report what they receive as a matter of public funds
• Requires transparency and accountability
12. It limits the use of forfeited drug funds to the “payment of the operation of the district attorney's office for equipment, trial expenses, victim-witness services, training expenses, and travel expenses.” Thereby eliminating the use of funds for anything else including personnel.
• Current Law: Upon permission and after requesting from local governing authority, can receive 10% of funds for operation expenses
• Bill defines the specific use of money and excludes current money expended on personnel
• Better to enumerate explicitly how funds are used versus implying
13. The pro rata distribution only applies to the “currency portion” of the forfeiture pool, leaving no provisions as to in-kind distributions.
• AM 29 2102 will be proposed in committee to address this issue and delete the specific reference to ‘currency’
14. “In kind” distributions of non-cash property is ill-defined and specifically requires titles such property in the “political subdivision” (i.e. county or municipality)
• A governmental entity can hold title to tangible property and real estate
• The county or municipality is the owner of the property
• Sheriff is an office and not a legal entity
15. Eliminates the language providing that forfeited property shall be used for any official law enforcement purpose “at the discretion of the chief officer of the local law enforcement agency.”
Unduly imposes limits on use of forfeited property for “official law enforcement purposes.”
• Line 559 of HB 1 defines ‘official law enforcement purpose’
i. 9-16-20(a)(1) 'Official law enforcement purpose' means expenditures for law enforcement equipment, training expenses, and investigative expenses; such term shall not include the payment of salaries or rewards to law enforcement personnel.
ii. The only thing the definition excludes is the use of the funds for salaries, which is not legal under federal law, to avoid any potential abuse of seizing property in order to maintain salaries increases year after year
16. Eliminates the 25% cap on amount of pro rata distribution of forfeited property that can be received by State where State law enforcement agency involved in seizure.
• HB 1 requires a proper accounting of funds
• Equitable distribution among all law enforcement agencies involved with the forfeiture
17. Burdens law enforcement by expanding the annual reporting requirements by law enforcement concerning the utilization of forfeited assets.
• HB 1 requires an accounting of the proper use of funds and their expenditures
• Current law requires much of the same information
• These are public funds and proper accounting should be made
18. Provides a new penalty clause for improper reporting and/or use of forfeited property and places the burden on the DA as to when the penalty will commence
• HB 1 requires reporting
• It does not require the district attorneys to investigate how law enforcement used the funds