Is That Really Yours? – By Joel Aaron & Virginia Galloway

February 26, 2013

One of the benchmarks of economic freedom is protection of property rights under the rule of law. Under current GA civil forfeiture law, one wonders if the property rights of Georgians are being circumvented by a few law enforcement entities that “police for profit” and whether citizens are presumed guilty until proven innocent.

AFPGA supports and appreciates law enforcement officers’ and agencies’ vitally important role in public safety. We trust that most officers are honorably discharging their duties and not engaged in any abuse of their power. Unfortunately, the actions of a few rogues have brought to light some fundamental weaknesses in GA asset forfeiture law. According the the Institute for Justice, Georgia is rated D- on it’s civil forfeiture laws, the lowest grade in the nation. HB 1 seeks to reform that law and provide protection for personal property rights.

Imagine you are accused of a crime you didn’t commit. Or your property was used, unbeknownst to you, in the commission of a crime. Or your vehicle was parked in the driveway of someone who was arrested for a crime. Under Georgia’s civil asset forfeiture law, you could become a victim of someone else’s mistake. Law enforcement agents confiscate your car, your cash and bank accounts, maybe even put a lien on your house. Even if you are eventually exonerated, you’ve suffered enormous emotional and fiscal harm in the process. And you’ll most likely need to hire an attorney to get your stuff back.

Georgia’s Civil Forfeiture Act (HB 1) is currently on the table in the General Assembly to address many of these concerns. The bill raises the standard of evidence required to seize assets. It also refines reporting requirements for agencies that receive the assets and shifts the burden of proof for innocent owners.

In Georgia House Judiciary testimony over House Bill 1, the Civil Forfeiture Act, McGrath said that “…GA has one of 5 worst federal forfeiture regimes in the nation and the worst in the south”. He continues, “The GA laws include incentives that have a tendency to corrupt the honorable law enforcement officers from the neutral pursuit of justice to policing for profit.”

Georgia Sheriff’s Association President Howard Self expressed concern over the bill, as did a spokesperson for Georgia’s District Attorneys. They warned that HB 1, if enacted, would hamper the administration of justice in a local community by tying up the process with more red tape. They further stated that lowering the threshold for a court hearing for asset forfeiture from $25,000 to $5,000 would cause costs to skyrocket under an avalanche of new cases at local district attorney’s offices. The net impact would mean that the law would be on the side of the criminals using their assets to, say, keep dealing drugs in Georgia communities.

On the other side of the argument stand several organizations and individuals with stories you don’t want to believe could happen in your state. Cash seized for no reason other than the person was carrying a suspicious amount of cash. A mother’s car seized at the home her daughter had driven it to for a sleepover. Homes and bank accounts seized for a crime so lacking in evidence that the judge dismissed it without a trial.

At the very least, the rule of law would require accurate and complete reporting of what was seized and why. And GA law does. However, an IJ report, “Rotten Reporting in the Peach State,” details the lack of accountability in reporting and use of forfeited assets, most of which are cash. An excerpt states, “What results is a revenue generating scheme that to date in Georgia has gone largely unaccountable, despite the legislature’s intention of transparency. State statutes require local law enforcement agencies to annually report and itemize all property obtained through civil forfeiture as well as what they do with it. The trouble is, historically they haven’t. A 2002 state audit that found that 85 percent of 26 agencies surveyed failed to create annual reports as required. In 2010, the Institute for Justice went looking for required reports. We contacted a random sample of 20 law enforcement agencies—only two were found to be reporting as required by law. Next we sought out reports from 15 major law enforcement agencies in Georgia’s five most populous cities and counties; only one produced the forfeiture report required by law.”

HB 1 more clearly lays out the reporting requirements for state and local agencies. It raises the standard of proof that the property is connected to a crime from “preponderance of the evidence” to “clear and convincing,” which is about 70% of the level for criminal conviction. It gives more protection to innocent owners.

The arguments are heated over HB 1. GA legislators are bombarded by agencies which profit in the millions by seizing assets. House Bill 1 addresses the larger issue where private property is forcibly taken from citizens over an arrangement of guilt until proven innocent. This clearly violates an owner’s property rights and the rule of law. House Bill 1 deserves support for a strong stance on protecting the economic freedom of a free society.

Joel Aaron is State Communications Director and Grassroots Coordinator for Americans For Prosperity Georgia. He owns a communications company in Atlanta involved in new media and event production services.

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