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Official Opinion 95-29

Official Opinion 95-29

June 8, 1995
To: 

The Adjutant General
Georgia Department of Defense

Re: 

The National Guard is a law enforcement agency within the contemplation of O.C.G.A. § 16-13-48.1 and -49(u)(4)(B) and is eligible to share in proceeds of drug-related forfeitures with respect to activities under O.C.G.A. § 38-2-10 or a duly declared emergency.

This responds to your request for an opinion as to whether the Georgia National Guard may be designated as a "law enforcement agency" for purposes of sharing in proceeds of drug-related forfeitures made available under federal and state law. In connection with this request, members of your staff have informed me that the Georgia National Guard regularly participates in drug law enforcement efforts in the state and has been assigned a substantial level of participation in the Governor's Strike Force on Drugs. You have also informed me that the National Guard Bureau has given approval for the Georgia National Guard to share in proceeds of drug-related forfeitures on the condition that the state designate the Georgia National Guard as a "law enforcement agency." The exact source of this condition is not specified, but appears to be based on federal law.

Under our law, state agencies have only such authority as the law confers. Bentley v. State Bd. of Medical Examiners, 152 Ga. 836, 838 (1922), 1987 Op. Att'y Gen. 87-15. Thus, for the

National Guard to share in proceeds of drug-related forfeitures, there must be a sufficient legal premise under state law. This requires that two questions be answered:

(1) Whether Georgia law allows state agencies to apply for, receive, and expend proceeds of drug-related forfeitures; and

(2) Whether the National Guard is such an agency.

As to the first question, state agencies are allowed to share in proceeds of drug-related forfeitures made by federal and state authorities. Official Code of Georgia Annotated § 16-13-48.1 provides that: "Money or property seized or forfeited pursuant to federal law regarding controlled substances, . . . which [is] . . . authorized by that federal law to be transferred to a cooperating law enforcement agency of this state . . ., shall be utilized by the law enforcement agency . . . to which . . . transferred . . . ."

This language clearly allows cooperating law enforcement agencies of this state to share in proceeds of drug-related forfeitures made under federal law. In equally clear language, O.C.G.A. § 16-13-49(u)(4)(B) allows state agencies to share in proceeds of drug-related forfeitures under state law.

As to the second question, O.C.G.A. § 38-2-10(a)(1) provides, in part that:

[T]he Governor, as commander in chief of the organized militia of this state and in accordance with 32 U.S.C. Section 112, may:

(1) Authorize or direct the Georgia National Guard to assist and support federal, state, and local law enforcement agencies in drug interdiction [and] counterdrug activities . . . .

This authority includes the power to make "use of military equipment and facilities, [make] drug seizure[s]. . . and [render] such other assistance as may be necessary and within the authority of the requesting law enforcement agency." O.C.G.A. § 38-2-10(b)(1)(A) (emphasis added). Under this provision, the National Guard has the same authority as the requesting law enforcement agency when rendering assistance. Thus, the National Guard functions as a law enforcement agency when engaged in drug law enforcement under O.C.G.A. § 38-2-10. The National Guard may also function as a law enforcement agency when an emergency is duly declared. See, e.g., O.C.G.A. § 45-12-31(1).

The treatment of the National Guard as a law enforcement agency for the purpose of sharing in proceeds of drug-related forfeitures is consistent with both federal and state law. Official Code of Georgia Annotated § 45-12-34 treats the National Guard as a law enforcement agency through its reference to "military forces . . . or any other . . . law enforcement agency." Federal law authorizes the "transfer [of forfeited] property to . . . any State . . . law enforcement agency which participated directly in the seizure or forfeiture of the property." 21 U.S.C. § 881(e)(1)(A). However, such transfers must bear "a reasonable relationship to the degree of direct participation of the State . . . law enforcement effort . . . ." 21 U.S.C. § 881(e)(3). This indicates that the right to share in proceeds of federal drug-related forfeitures under O.C.G.A. § 16-13-48.1 depends on the degree of direct participation in the effort resulting in the forfeiture. State law similarly conditions the right to share in state level forfeitures on the "role" the agency plays. O.C.G.A. § 16-13-49(u)(4)(B). Consequently, whenever the National Guard provides direct assistance to a law enforcement agency pursuant to O.C.G.A. § 38-2-10 or a duly declared state of emergency, it is a law enforcement agency within the meaning of O.C.G.A. §§ 16-13-48.1 and -49 and is eligible to receive proceeds of drug-related forfeitures made by state and federal authorities.

Therefore, it is my official opinion that the National Guard is a law enforcement agency within the meaning of O.C.G.A. §§ 16-13-48.1 and -49(u)(4)(B) when acting pursuant to O.C.G.A. § 38-2-10 or a duly declared state of emergency and is eligible to share in proceeds of drug-related forfeitures made by state and federal authorities.

Prepared by:

ISAAC BYRD
Senior Assistant Attorney General