Introduced in the Montana Legislature in 1995. Passed. Vetoed by Governor

Introduced in the Montana Legislature in 1997. Tabled in House Judiciary
Committee.

Replaced later with Sheriffs First Resolution

        HOUSE BILL NO. 415
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 EFFECTIVE
DATE."

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 authorities.
 
2.        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 occur unless:
        (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 or
46 6 412;
        (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 sufficient.
        (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.

3.        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.

4.        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.
 
5.        Effective date.  [This act] is effective on passage and approval.
 
6.        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.
         END