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HOUSE BILL NO.
A BILL FOR AN ACT ENTITLED: "AN ACT GENERALLY REVISING PROVISIONS
RELATED TO FORFEITURES FOR CRIMINAL ACTS; PROVIDING A PROCEDURE FOR
FORFEITURE OF PROPERTY; AMENDING SECTIONS (long list) MCA."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
NEW SECTION. Section 1. Forfeiture
of property for commission of criminal offense -- procedure --
disposition. (1) Money, real property, vehicles and other conveyances,
or tangible and intangible personal property of any kind that is used
in connection with the commission of a criminal offense provided for in
the Montana statutes is not subject to forfeiture unless it is owned by
a person convicted of a criminal offense, it is ordered forfeited as
part of the sentence imposed upon conviction, and a section of Montana
law specifically provides for forfeiture as part of the sentence
imposed upon conviction. A civil forfeiture proceeding may not be used
to proceed against property suspected of being used in connection with
the commission of a criminal offense.
(2) Unless another section of Montana statute
specifically provides a procedure for disposition of property forfeited
as part of the sentence imposed upon conviction of a criminal offense
specified in that section, the forfeited property must be disposed of
as provided in this section.
(3) The sheriff shall seize the forfeited
property within 10 days after the conviction.
(4) Forfeiture of property encumbered by a
security interest is subject to the secured person's interest if the
secured person did not know and could not have reasonably known of the
unlawful possession, use, or other act in connection with the
commission of the crime.
(5) If proper proof of a security interest is
presented to the sheriff, the sheriff shall release the property to the
secured person if the amount due the person is equal to or greater than
the value of the property.
(6) Property not released to a secured person
under subsection (5) must, except as provided in subsection (7), be
sold by the sheriff at a public auction in the same manner as provided
by law for the sale of property under execution. The property may not
be sold to an officer or employee of a law enforcement agency. The net
proceeds of the sale must be distributed first to a secured person who
has presented proper proof of the security interest to the sheriff, and
any remaining proceeds must be deposited in the account established in
(7) Property that is unlawful to produce or
possess must be destroyed by the sheriff if it cannot be sold to a
person or entity that can lawfully possess it.
NEW SECTION. Section 2. Action for
illegal forfeiture -- procedure. (1) It is the purpose of the
legislature to create in state law a civil action that is similar to
the form of action created in federal law by 42 U.S.C. 1983 and by
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971).
(2) A public official or employee of the state
or of a local government who unlawfully seizes, holds, disposes of, or
takes any other action in regard to property that a court may order
forfeited as part of the sentence imposed upon a conviction of a
criminal offense does so as a private person and not as a public
official or employee, and the act is not an official act. The public
official or employee is subject to a civil action by the owner of the
property for compensatory and punitive damages. An action against a
public official or employee is against the public official or employee
as a private person acting outside of the public official's or
employee's official capacity. Public funds may not be used to pay any
costs of legal defense for or damages awarded against the public
official or employee.
(3) A public official or employee who orders
or directs another public official or employee or other person to
unlawfully seize, hold, dispose of, or take any other action in regard
to property that a court may order forfeited as part of the sentence
imposed upon a conviction of a criminal offense is accountable for the
act of the ordered or directed public official or employee or other
person as if the ordering or directing public official or employee
committed the act.
(4) A person who attempts to cover up an act
that is actionable under this section or to obstruct an action under
this section is accountable for the act giving rise to the action as if
the person had committed the act.
(5) This section does not apply to:
(a) a peace officer making an arrest if the
peace officer has probable cause to believe that the person being
arrested has committed a crime or to a peace officer serving a warrant
if the peace officer has reasonable cause to believe that the warrant
has been issued with probable cause, due process, and proper authority;
(b) a judicial officer acting in a normal and
usual judicial capacity; or
(c) a circumstance that included full
compliance with due process of law.
(6) Either party to an action under this
section must be granted a jury trial upon demand.
(7) In an action under this section, the
prevailing party is entitled to be awarded reasonable court costs and
(8) In an action under this section, the jury
or, in the absence of a jury, the court shall determine the damages.