"Sheriffs First" model legislation
"Sheriffs First" bill would make it a state crime for a federal officer
to arrest, search, or seize in the state (Montana in this example)
without first getting the advanced, written permission of the elected
county sheriff of the county in which the event is to take place.
Locally-elected sheriffs are accountable to the people and are supposed
to the the chief law enforcement officer of the county, bar none.
This bill puts teeth into the expectation that federal agents must
operate with the approval of the sheriff, or not at all. It also
gives the local sheriff tools necessary to protect the people of his
county, and their constitutional rights. There are exceptions in
the legislation for "hot pursuit", U.S. customs and border patrol,
corrupt sheriffs, and more.
For an MSWord (.doc) version click HERE
HOUSE BILL NO.
INTRODUCED BY ________________________
A BILL FOR AN ACT ENTITLED: "AN ACT REGULATING ARRESTS, SEARCHES, AND
SEIZURES BY FEDERAL EMPLOYEES; PROVIDING THAT FEDERAL EMPLOYEES SHALL
OBTAIN THE COUNTY SHERIFF'S PERMISSION TO ARREST, SEARCH, AND SEIZE;
PROVIDING FOR PROSECUTION OF FEDERAL EMPLOYEES VIOLATING THIS ACT;
REJECTING FEDERAL LAWS PURPORTING TO GIVE FEDERAL EMPLOYEES THE
AUTHORITY OF A COUNTY SHERIFF IN THIS STATE; AND PROVIDING AN IMMEDIATE
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
1. Purpose. It is the intent of the
legislature to ensure maximum cooperation between federal employees and
local law enforcement authorities; to ensure that federal employees who
carry out arrests, searches, and seizures in this state receive the
best local knowledge and expertise available; and to prevent
misadventure affecting Montana citizens and their rights that results
from lack of cooperation or communication between federal employees
operating in Montana and properly constituted local law enforcement
2. Declaration. The elected
sheriff of each county is the senior law enforcement officer of that
county and is the most authoritative law enforcement official in the
county. The primary duties of the sheriff are to keep the peace
in the county and to secure and protect the liberties and security of
the residents of the county.
3. County sheriff's permission for federal
arrests, searches, and seizures -- exceptions. (1) A
federal employee who is not designated by Montana law as a Montana
peace officer may not make an arrest, search, or seizure in this state
without the written permission of the sheriff or designee of the
sheriff of the county in which the arrest, search, or seizure will
(a) the arrest, search, or seizure will take
place on a federal enclave for which jurisdiction has been actively
ceded to the United States of America by a Montana statute;
(b) the federal employee witnesses the
commission of a crime the nature of which requires an immediate arrest;
(c) the arrest, search, or seizure is under
the provisions of 46-6-411 (close pursuit) or 46-6-412 (customs and
(d) the intended subject of the arrest,
search, or seizure is an employee of the sheriff's office or is an
elected county or state officer; or
(e) the federal employee has probable cause to
believe that the subject of the arrest, search, or seizure has close
connections with the sheriff, which connections are likely to result in
the subject being informed of the impending arrest, search, or seizure.
(2) The county sheriff or designee of the
sheriff may refuse permission for any reason that the sheriff or
designee considers sufficient.
(3) A federal employee who desires to exercise
a subsection (1)(d) exception shall obtain the written permission of
the Montana attorney general for the arrest, search, or seizure unless
the resulting delay in obtaining the permission would probably cause
serious harm to one or more individuals or to a community or would
probably cause flight of the subject of the arrest, search, or seizure
in order to avoid prosecution. The attorney general may refuse
the permission for any reason that the attorney general considers
(4) A federal employee who desires to exercise
a subsection (1)(e) exception shall obtain the written permission of
the Montana attorney general. The request for permission must
include a written statement, under oath, describing the federal
employee's probable cause. The attorney general may refuse the
request for any reason that the attorney general considers sufficient.
(5) (a) A permission request to the county sheriff or Montana attorney general must contain:
(i) the name of the subject of the arrest, search, or seizure;
(ii) a clear statement of probable cause for
the arrest, search, or seizure or a federal arrest, search, or seizure
warrant that contains a clear statement of probable cause;
(iii) a description of specific assets, if any, to be searched for or seized;
(iv) a statement of the date and time that the arrest, search, or seizure is to occur; and
(v) the address or location where the intended arrest, search, or seizure will be attempted.
(b) The request may be in letter form, either
typed or handwritten, but must be countersigned with the original
signature of the county sheriff or designee of the sheriff or by the
Montana attorney general, to constitute valid permission. The
permission is valid for 48 hours after it is signed. The sheriff
or attorney general shall keep a copy of the permission request on file.
4. Remedies. (1) An arrest,
search, or seizure or attempted arrest, search, or seizure in violation
of [section 2] is unlawful, and individuals involved must be prosecuted
by the county attorney for kidnapping if an arrest or attempted arrest
occurred, for trespass if a search or attempted search occurred, for
theft if a seizure or attempted seizure occurred, and for any
applicable homicide offense if loss of life occurred. The
individuals involved must also be charged with any other applicable
criminal offenses in Title 45.
(2) To the extent possible, the victims'
rights provisions of Title 46 must be extended to the victim or victims
by the justice system persons and entities involved in the prosecution.
(3) The county attorney has no discretion not
to prosecute once a claim of violation of [section 2] has been made by
the county sheriff or designee of the sheriff, and failure to abide by
this mandate subjects the county attorney to recall by the voters and
to prosecution by the attorney general for official misconduct.
5. Invalid federal laws. Pursuant to
the 10th amendment to the United States constitution and this state's
compact with the other states, the legislature declares that any
federal law purporting to give federal employees the authority of a
county sheriff in this state is not recognized by and is specifically
rejected by this state and is declared to be invalid in this state.
6. Effective date. [This act] is effective on passage and approval.
7. Severability. If a part of [this
act] is invalid, all valid parts that are severable from the invalid
part remain in effect. If a part of [this act] is invalid in one or
more of its applications, the part remains in effect in all valid
applications that are severable from the invalid applications.