Can the Georgia National Guard share in proceeds of drug-related civil forfeitures alongside police, sheriffs, and the GBI?

Plain-English summary

In 1995, the Attorney General had concluded that the Georgia National Guard was a "law enforcement agency" eligible to share in proceeds from drug-related forfeitures under the then-existing forfeiture statutes. That conclusion mattered because the Guard plays an active role in drug-demand-reduction operations and assists civil authorities in drug enforcement under O.C.G.A. § 38-2-10.

In 2015, the General Assembly enacted the Georgia Uniform Civil Forfeiture Procedure Act, a substantial rewrite of state forfeiture law. Among other things, the Act repealed former O.C.G.A. § 16-13-48.1 and moved the federal-forfeiture-distribution provisions into a new statute, O.C.G.A. § 9-16-21. The Adjutant General asked AG Chris Carr whether the 1995 conclusion still held under the new statutory framework.

The answer was yes. The new Act's distribution provisions in § 9-16-19 and § 9-16-21 used "law enforcement agency" as the eligible recipient. § 9-16-19(a)(2) defined that term 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 Guard fit. Its drug-enforcement powers under O.C.G.A. § 38-2-10 and its order-maintenance authority under O.C.G.A. § 45-12-31 had not been changed by the 2015 Act. When the Guard was engaged in either of those statutory functions, it met the definition. The basic analysis from 1995 carried through.

The opinion formally modified 1995 Op. Att'y Gen. 95-29 to reflect the post-2015 statutory reorganization, but did not change the substantive conclusion. The Guard could share in drug-related forfeiture proceeds.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why does the National Guard get forfeiture proceeds?
A: Because under § 38-2-10, the Guard is authorized to participate in drug-law enforcement (often through drug demand reduction programs and counter-narcotics operations alongside civilian law enforcement). When Guard activities contribute to a drug seizure, the Guard can share in the resulting forfeiture proceeds like any other contributing law enforcement agency.

Q: Does the Guard need to make arrests to qualify as a law enforcement agency?
A: The statutory definition requires that the agency's employees "are authorized to make arrests for crimes or seize property while acting within the scope of their authority." When the Guard is engaged in its § 38-2-10 drug enforcement duties or its § 45-12-31 order-maintenance role, Guard members have those authorities.

Q: What changed in 2015?
A: The Georgia Uniform Civil Forfeiture Procedure Act (2015 Ga. Laws 693) consolidated forfeiture procedures, repealed former § 16-13-48.1, and moved federal-forfeiture distribution to § 9-16-21. The new framework was more uniform, but the substantive question of who counts as a law enforcement agency was preserved with a clear statutory definition in § 9-16-19(a)(2).

Q: Was this opinion needed because of doubt about the new statute?
A: Yes. After major statutory rewrites, opinions issued under the old framework can become unclear. The Adjutant General sought confirmation that the Guard's eligibility for forfeiture proceeds had not been silently changed.

Q: How does federal forfeiture work for the Guard?
A: § 9-16-21 says property or proceeds transferred to a Georgia law enforcement agency under federal forfeiture law are used "as authorized by . . . federal law and regulations or guidelines promulgated thereunder." So the federal program (DOJ Equitable Sharing) sets the use rules; Georgia just confirms who can be a recipient.

Background and statutory framework

The Georgia National Guard's drug-enforcement role traces to federal counter-drug funding programs of the late 1980s and 1990s, which encouraged states to use Guard resources for drug interdiction, demand reduction, and intelligence support. Georgia codified the Guard's role in O.C.G.A. § 38-2-10. The Guard does not independently police citizens, but it provides personnel, equipment, and capabilities to civilian law enforcement during drug-enforcement and order-maintenance operations.

The 1995 opinion (95-29) read the then-existing forfeiture statutes (former § 16-13-48.1, § 16-13-49) to include the Guard within the eligible-recipient class. The 2015 Act preserved that result by carrying the operative analysis into § 9-16-19's definition of "law enforcement agency."

The opinion formally "modified" the 1995 opinion rather than withdrawing it. That signals that the substantive conclusion remains good law, but the reader should look to the new statutes (§ 9-16-19 and § 9-16-21) rather than the now-repealed former § 16-13-48.1.

Citations and references

Statutes:
- O.C.G.A. § 9-16-19 (forfeiture proceeds disposition)
- O.C.G.A. § 9-16-21 (federal forfeiture distribution)
- O.C.G.A. § 16-13-49 (drug-related forfeiture)
- O.C.G.A. § 38-2-10 (National Guard drug enforcement powers)
- O.C.G.A. § 45-12-31 (Governor's authority over National Guard)
- 2015 Ga. Laws 693 (Georgia Uniform Civil Forfeiture Procedure Act)

Prior opinions:
- 1995 Op. Att'y Gen. 95-29 (Guard as law enforcement agency for forfeiture; modified)

Source

• Landing page: https://law.georgia.gov/opinions/2018-2

Original opinion text

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