Montana Governor Signs Law To Protect Innocent People From Having Their Property Seized By Police

05/06/2015 02:37 pm ET | Updated May 06, 2015

Montana Gov. Steve Bullock (D) signed a bill Tuesday that will overhaul the state's civil asset forfeiture laws.

The set of reforms, which will go into effect in July, was approved with overwhelming bipartisan support in the state legislature last month. Bullock's signature came hours before the deadline for him to sign or veto bills from the legislative session.

Civil asset forfeiture is a controversial legal tool that allows police to seize property they suspect of being related to criminal activity, without first obtaining a conviction or even charging its owner with a crime. Property -- including cash, jewelry, cars and houses -- is then turned for a profit, part of which flows back to the department that made the seizure. This process often forces owners to wage costly court battles to prove their property was obtained legally. Critics also claim it has created a system of "policing for profit" that leads officers to prioritize seizures so they can use the resulting funds to pad their budgets.

Montana's HB 463 does away with the most controversial aspects of civil asset forfeiture, requiring police to convict a property owner of a crime before going through permanent forfeiture proceedings. The law also raises the legal threshold for forfeiture in the event of a conviction, requiring police to present "clear and convincing evidence" that the seized property is connected to criminal activity. Beyond these new regulations, the bill establishes a number of protections, such as a pretrial process, that allow owners of seized property to defend themselves against civil forfeiture.

Montana's existing laws earned a D-plus rating from the Institute for Justice, a libertarian group that focuses on civil liberties. Police need to establish only probable cause that property is connected to a crime in order to seize and forfeit it. The burden of proof is then placed on targets who wished to reclaim their property, requiring them to provide evidence that it was not connected to criminal activity.

Advocates for civil asset forfeiture reform have hailed the new law as a much-needed change.

"The reforms signed into law yesterday are an important step forward toward better protecting Montanans' due process and property rights from the inherent and structural flaws in civil forfeiture," Lee McGrath, legislative counsel for the Institute for Justice, told The Huffington Post.

State Rep. Kelly McCarthy (D), the bill's sponsor, said the new law will safeguard the rights of citizens without affecting law enforcement's ability to fight crime.

"Thanks to Governor Bullock’s signing of HB 463, the due process protections that our founders envisioned when authoring the 5th Amendment are now much stronger," he said in a statement. "Innocent Montanans do not have to fear losing their assets to the state when they’ve not committed a crime and those facing forfeiture are now assured fair treatment in Montana court rooms.”

But McGrath and McCarthy also noted that even the new law does nothing to address a federal loophole that allows local law enforcement agencies to circumvent the state's improved protections.

Under the Justice Department's Equitable Sharing Program, police working with federal agencies can submit seized property for forfeiture through a federal process that is more lenient than most of those at the state level. Up to 80 percent of the resulting profits are then given back to the local department involved with the seizure.

"There is more work to do," McGrath said of Montana's effort. "Reform supporters across the political spectrum will ask for additional reforms when the legislature next meets in two years if law enforcement attempts to circumvent state law by collaborating with the [Drug Enforcement Administration] and other federal agencies. Local police, sheriffs and prosecutors are on notice that they cannot export criminal prosecution and forfeiture litigation to the federal government in order to keep forfeiture proceeds going to supplement their own budgets."

McCarthy told The Huffington Post that the law doesn't addressed all of his concerns either, but he'll be watching closely to determine if further changes need to be made next session.

A set of reforms announced earlier this year by then-Attorney General Eric Holder eliminated "adoptive seizures" under the Equitable Sharing Program, which had allowed local law enforcement to submit property for federal forfeiture, even if a federal agency hadn't been involved in the seizure. A report by the Institute for Justice in February, however, found that adoptive seizures accounted for only about 25 percent of all properties seized under the program and only about 10 percent of the total value of all seizures.

The vast majority of forfeitures under the Equitable Sharing Program are the result of joint seizures, in which local authorities have cooperated with federal agencies at some point in the process. Holder's reforms did nothing to address this type of forfeiture.

Other states have made moves to specifically close this loophole. A civil asset forfeiture reform law passed in New Mexico last month explicitly prohibits local law enforcement from transferring seized property to federal authorities if it would mean circumventing the state's new protections. A proposal currently being debated in California contains a similar statute.

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