Official Opinion 2018-2

October 11, 2018
To: 

Adjutant General, Georgia Department of Defense

Re: 

The Georgia National Guard is a law enforcement agency eligible to share in proceeds of drug‑related forfeitures and 1995 Op. Att’y Gen. 95‑29 describing the legal authority to do so is modified to reflect changes and current Georgia law, including the adoption of the “Georgia Uniform Civil Forfeiture Procedure Act.”

In 1995, this office opined that the Georgia National Guard was a law enforcement agency within the contemplation of O.C.G.A. §§ 16‑13‑48.1 and 16‑13‑49(u)(4)(B) and was therefore eligible to share in proceeds of drug‑related forfeitures with respect to activities under O.C.G.A. §§ 38‑2‑10 and 38‑2‑11, or a duly declared emergency.  While some provisions of Georgia’s forfeiture laws have been amended since that time, the National Guard remains such a law enforcement agency eligible to share in drug‑related forfeitures proceeds.  The previous opinion on this subject, 1995 Op. Att’y Gen. 95‑29, is modified to reflect the changes in Georgia law, including the adoption of the “Georgia Uniform Civil Forfeiture Procedure Act.”

In 2015, the General Assembly enacted the Georgia Uniform Civil Forfeiture Procedure Act, which substantially revised civil forfeiture procedures in Georgia, including moving these provisions from criminal to civil statutory provisions with the Georgia Code.  O.C.G.A. § 9‑16‑1 et seq.; 2015 Ga. Laws 693.  Former O.C.G.A. § 16‑13‑48.1 was repealed, and its provisions as to the forfeiture of property and its transfer to law enforcement agencies were included as a portion of O.C.G.A. § 9‑16‑21.  2015 Ga. Laws at 717-18, 728 (Sec. 2-21).  However, the analysis of whether the Georgia National Guard may be designated as a “law enforcement agency” for purposes of sharing in proceeds of drug‑related property forfeitures made available under federal and state law remains unchanged.

O.C.G.A. § 9‑16‑21 provides as follows:

(a) Property seized or forfeited pursuant to federal law, and such property or proceeds, authorized by such federal law to be transferred to a cooperating law enforcement agency of this state or any political subdivision thereof shall be utilized by the law enforcement agency or political subdivision to which the property or proceeds are so transferred as authorized by such federal law and regulations or guidelines promulgated thereunder. If federal law and regulations or guidelines promulgated thereunder are silent as to the utilization of such property or proceeds, the property and proceeds shall be disposed of and utilized as set forth in Code Section 9‑16‑19.

(b) Any law enforcement agency receiving property or proceeds pursuant to federal law shall also comply with subsection (g) of Code Section 9‑16‑19.

The new code section is nearly identical to the original, with the exception of the reference to O.C.G.A. § 9-16-19.  O.C.G.A. § 9‑16‑19 (a)(2) defines “law enforcement agency” as “a governmental unit of one or more persons employed full time or part time by the state, a state agency or department, or a political subdivision for the purposes of preventing and detecting crime and enforcing state laws or local ordinances, employees of which unit are authorized to make arrests for crimes or seize property while acting within the scope of their authority.”

The National Guard satisfies these criteria and is a law enforcement agency under this definition.  The analysis of the Georgia National Guard’s law enforcement authority remains the same as in 1995 Op. Att’y Gen. 95‑29 and it continues to meet the definition of a “law enforcement agency” as defined by O.C.G.A. § 9‑16‑19.  Both O.C.G.A. § 38‑2‑10, dealing with the National Guard’s drug law enforcement powers, and O.C.G.A. § 45‑12‑31, addressing the Guard’s authority to prevent violence and maintain order, are unchanged.  The Guard continues to have the same authority as a law enforcement agency when rendering assistance in preventing violence and maintaining order and when engaged in drug enforcement activities.  O.C.G.A. §§ 38‑2‑10, 45‑12‑31.

Thus, it is my opinion that the Georgia National Guard is a law enforcement agency eligible to share in proceeds of drug‑related forfeitures and 1995 Op. Att’y Gen. 95‑29 describing the legal authority to do so is modified to reflect changes and current Georgia law, including the adoption of the “Georgia Uniform Civil Forfeiture Procedure Act.”

Prepared by:

Amy M. Radley

Assistant Attorney General