Montana Legislature Introduces Forfeiture Reform Bill                   by Judy Osburn
In addition to assuring that state courts may only forfeit property from owners who have been convicted of a related crime, this important reform legislation would curtail the perversion of law enforcement priorities caused by the profit motive of agencies keeping seized property.

Montana's HB 775, introduced February 19, would revise Montana state forfeiture laws to require criminal convictions of property owners before property may be forfeited by the state. The bill also would eliminate the profit motive that corrupts priorities of police and prosecutorsby directing proceeds from state forfeitures, as well as local shares from federal forfeitures, into a state fund for public defenders .  By providing that all state forfeitures be imposed upon conviction of a criminal offense as part of sentencing, the bill would also eliminate state civil forfeiture proceedings that declare property guilty of crime, regardless of the guilt or innocence of its owner. 

The bill would also require sheriffs to immediately return property to innocent lien holders who provide proof of a security interest equal to or greater than the value of the seized property.  Proceeds of forfeited property sold at auction would be distributed to innocent owners with a secured interest less than the entire value, with the remaining proceeds to be deposited in the state fund for distribution to public defender offices.  HB 775 would also prohibit sale of seized property to an officer or employee of a law enforcement agency.

The revision to Montana forfeiture laws would also create a state civil action similar to suits against law enforcement officers and agencies for civil rights violations similar to the form of action created in federal law by 42 U.S.C. 1983.  A public official or employee who illegally seizes, holds, disposes of, or takes any other unlawful action in regard to seized property would be subject to a civil suit by the property owner.  The action against the public official or employee would be against that person as a private individual acting outside of his or her official capacity, and the bill would prohibit public funds from being used to pay costs of legal defense or damages awards against such public official or employee.  A person who attempts to cover up or obstruct an act that is actionable under this bill would become liable for the act giving rise to the civil rights suit.

The civil rights suit would not apply to a peace officer who has probable cause to make an arrest, a peace officer serving a warrant who has reasonable cause to believe that the warrant has been properly issued, a judicial officer acting in a normal judicial capacity, nor any circumstance that includes full compliance with due process of law.  A public official or employee acting in compliance with the law would be immune from civil suit under this bill.  Such determination that an employee was acting lawfully within the scope of his or her employment would be made by the government entity upon application of the employee or by court order. An employee who acts legally within the scope of employment would be indemnified by the government employer for any monetary judgments or legal expenses, and recovery against the government entity would bar any action against the individual official or employee.

All too often after state forfeiture reform laws require a criminal conviction of the owner before property may be forfeited, seizing agencies simply turn over civil forfeiture proceedings to federal courts and continue to collect up to 80% of the forfeited proceeds. Once enacted, in addition to assuring that state courts may only forfeit property from owners who have been convicted of a related crime, this important reform legislation would curtail the perversion of law enforcement priorities caused by the lure of agencies keeping the proceeds of seized property.  Once enacted, this bill will end police piracy in Montana while preserving forfeiture’s legitimate goal of taking the profit out of crime.

Track the progress of this bill at
http://laws.leg.mt.gov/pls/laws07/law0203w$.startup