Ed Kemmick/Last Best News
Yellowstone County Attorney Scott Twito and Deputy County Attorney Vicke Callender talk about Montana civil asset forfeiture laws.
Two Billings lawmakers are planning to introduce legislation that would eliminate or overhaul a state law that allows authorities to seize the assets of people involved in crimes.
Reps. Kelly McCarthy, a Democrat, and Daniel Zolnikov, a Republican, say that while widespread abuse of the law has not been reported in Montana, law enforcement authorities in other states have used similar laws to seize property — including houses — from law-abiding citizens.
Yellowstone County Attorney Scott Twito said Montana law already makes most, if not all, of the abuses reported elsewhere highly unlikely to happen here.
“I’m a little concerned that neither of these legislators have read our laws,” he said.
But McCarthy and Zolnikov said they have heard from individuals in Billings and elsewhere in the state who believe their property was seized for no good reason.
“I’ve heard these stories over and over and over,” Zolnikov said. “It’s a population whose voices aren’t always heard.”
McCarthy said some of the stories he heard were third-hand, but he did speak with some people, including one person in Billings, who believe civil forfeiture law — used to seize the assets of people involved in criminal activities, whether or not there is a conviction — was used against them unfairly.
“But they don’t want to come forward,” McCarthy said. “They’re still feeling intimidated.”
McCarthy said his interest in the subject was sparked by an article that ran in the New Yorker magazine on Aug. 12, 2013. The story detailed how local law enforcement agencies in Texas, Florida and elsewhere routinely seized cash, cars, houses and other property, often on the flimsiest of pretexts, and often from people never charged with a crime, much less convicted.
Kelly McCarthy
In a recent CNN report referenced by McCarthy, the network reported that in just one city, Philadelphia, law enforcement officials seized more than 1,000 houses, some 3,300 vehicles and $44 million in cash during a 10-year period.
McCarthy said he and Zolnikov — assuming they are both re-elected to a second term in the House this November — will probably introduce two pieces of legislation. The first would call for simply eliminating civil asset forfeiture from Montana law. That would leave criminal forfeiture laws on the books, requiring a conviction before property could be forfeited.
That might be asking too much, so they plan to introduce another bill to change civil forfeiture laws. One change would be to require law enforcement agencies to file reports on seizures and to post the information to a database available to the public.
In addition to listing a description of all property seized, charges filed in each case and information on how the case was resolved — conviction, acquittal, etc. — authorities would have to detail how money from the forfeitures was spent.
Another change would require a criminal conviction before property could be forfeited. This would “preclude those who have not been convicted from having to incur unnecessary legal expense to recover their property,” McCarthy and Zolnikov said in a press release.
They would also suggest changes to prevent people from losing their possessions if they jointly owned property with a person involved in a crime. Under their proposal, the state would have to prove by a preponderance of evidence that the “innocent owner” consented to or had actual knowledge of the crime in question.
A related “hardship exception” would apply if failure to return property deprived a person “of all means to employment or care for dependents residing with the claimant,” or if the claimant “took timely and reasonable steps to prohibit the illegal use of the property.”
McCarthy and Zolnikov said another wrinkle involving civil forfeiture is that the federal government often invites state and local law enforcement agencies to work with the feds to arrest people for some crimes, generally those involving illegal drugs.
Daniel Zolnikov
Local agencies then share in the proceeds from the sale of forfeited property. In some states, the two legislators say, local agencies collaborating with federal officials are allowed to circumvent state forfeiture laws that were meant to protect private property and due-process rights.
Sen. Rand Paul, R-Ky., has introduced legislation to force federal agencies to follow state forfeiture laws, and similar legislation has been introduced in the U.S. House, they said.
Information on the U.S. Department of Justice website shows forfeitures totaling $1.7 million in Montana last year, of which $456,000 was returned to local law enforcement agencies, McCarthy and Zolnikov said. Of that, Billings received the largest share — $117,000 — they said.
McCarthy said the same press release that went to the news media was also given to Jon Bennion, a deputy state attorney general. Bennion, the legislative liaison in the AG’s office, was asked to circulate the release among key law enforcement groups, including the Montana County Attorneys Association and the Montana Sheriffs and Peace Officers Association.
Bennion said he had hoped to gather reactions to the proposal by the end of September and so had no feedback to deliver yet. But he said he was happy to see Zolnikov and McCarthy trying to gather some “real-world input.”
“We definitely want to give them a good idea of how this could impact criminal justice operations,” he said.
Twito received a copy of the release on Monday, and on Tuesday he responded to it in detail, as did Vicke Callender, the deputy county attorney who handles the drug forfeitures for his office.
They said Montana law already has most of the protections suggested by Zolnikov and McCarthy, and at least one of their proposals would actually impose a greater burden on criminal suspects. State law dealing with civil forfeiture is found in MCA 44-12, 101-206.
And because there must be a District Court hearing on a petition to forfeit property, he said, all the information regarding each case is already a matter of public record preserved and accessible in court documents.
In some of the horror stories detailed in national media reports, people whose houses were seized did not know it was going to happen until heavily armed officers showed up to evict them.
Again, Twito said, that couldn’t happen in Montana because of notification requirements. Within 45 days of seizing assets as part of a criminal investigation, Twito’s office has to file a petition asking to have the assets forfeited. Callender said there are no extensions of that deadline and no exceptions.
The owner of the property then has 20 days to file a verified response. If that is filed, the judge holds a hearing and rules on whether forfeiture is warranted. Twito said the whole process is cumbersome and labor-intensive and is used almost exclusively to increase the consequences of dealing drugs.
Callender said asset forfeiture sends the message that “if you’re going to deal drugs in our community, there is going to be a cost of doing business.”
Twito said the suggested change requiring a criminal conviction before forfeiture would greatly extend how long authorities could hold onto private property. With the existing 45-day deadline and mandated court hearing, forfeiture cases are decided fairly quickly, he said.
Waiting for a conviction to decide whether seized property should be returned to the owner could drag out the process for many months, he said.
Twito said Montana law, and common sense on the part of prosecutors, already extend protections to people facing forfeiture proceedings. Property will not be forfeited if the owners can demonstrate they had no knowledge that it was being used by someone else to further criminal activity.
Callender said she was working on a drug case just last weekend and was exchanging texts with a Billings police officer on the scene. Callender asked the officer whether they should seize a house that had evidently been used for drug-dealing, setting the stage for forfeiture proceedings.
But the officer responded that the suspected dealer was living with his in-laws, who had been cooperative and who appeared to have no knowledge of the drug-dealing. Callender said she decided on the spot not to seize the house.
She said the law is designed to go after “only those people engaged in moving drugs.”
Twito says his office constantly runs into problems when trying to seize vehicles used by drunken drivers with multiple DUI convictions. State law allows him to seize the vehicles, he said, but his office rarely does so because the vehicle in question might belong to a friend or a relative or, quite often, to a bank.
Twito said his office has sometimes been harshly criticized for failing to seize vehicles in such cases, but protection for innocent parties in state law usually precludes him from doing so.
McCarthy said he first spoke with Zolnikov about co-sponsoring the legislation a few months ago. He said the two freshman legislators had become close during the 2013 session “over some liberty issues,” and McCarthy wanted bipartisan support for their bill.
Zolnikov said civil asset forfeiture was “something I had on my radar” before McCarthy asked to co-sponsor the legislation. “I’m a very liberty-minded conservative Republican,” he said.
McCarthy also said he drew heavily on research done by the Institute for Justice, which describes itself as “the nation’s only libertarian, civil liberties, public interest law firm.”
“They’re the ones who helped me understand everything I know about civil forfeiture,” McCarthy said.
