THEIRS FOR THE TAKING

Montanans Confront a Dubious Weapon in the War on Drugs

On the morning of March 14, Chris Williams set out on foot with his
two dogs for the 2.5-mile walk to his East Helena-based medical
marijuana business, Montana Cannabis. After a long winter, the
weather was finally warmer. The hound and the pit bull nipped at one
another and pulled on their leather leashes. Pigeons cooed from a
trestle above him.

Williams's mellow mood turned to curiosity when he saw a sheriff's
car leading a line of unmarked cars down Euclid Avenue. "I thought,
'Oh well, maybe it's a funeral," he recalls. When several more cars
joined the caravan, Williams saw that their business looked more
urgent. "Then it registered with me, when my employee comes driving
back the other way on the road: 'Oh shit, they probably just raided
us.'...My worst worry was that they hurt someone."

Williams arrived at Montana Cannabis to find Drug Enforcement
Administration agents in tactical gear, armed with handguns. His
staff was restrained with plastic handcuffs. Federal agents carried
patient files and computers from the office. From the front-room
retail space, they took marijuana, pot butter, and money and loaded
it into the unmarked cars. In the greenhouse, 1,000 yards from the
showroom, law enforcement agents wore respirators while cutting down
plants that Williams had nurtured for years.

Each of Montana Cannabis's four operations--dispensaries in Missoula
and Billings as well as Helena, and a small grow operation in Miles
City--were raided March 14 as the federal government, assisted by
state and local law enforcement, executed 26 criminal search warrants
for cannabis operations across the state.

The U.S. Department of Justice took $38,000 from Montana Cannabis,
Williams says. The authorities seized more than cash: Agents also
towed away a 2008 Ford pickup and a 2006 Chevy Trailblazer. Montana
cannabis had a shooting range behind the greenhouse at the Helena
dispensary; among other items taken were several weapons, including
six owned by a Montana Cannabis employee, a gun manufactured in
Germany in 1913 and a weapon Williams's business partner inherited
from his grandfather. Williams says the items taken, not including
marijuana plants and cannabis products, were worth about $50,000.

Williams was angry after the raid. He was operating legitimately
under Montana law, he believed. He became more incensed in May when
the DEA and the Bureau of Alcohol, Tobacco, Firearms and Explosives
told him they were keeping the cars, cash and guns.

Williams's Montana Cannabis partner, Richard Flor, 67, was arraigned
June 30 on multiple charges including intent to distribute marijuana,
possession of firearms during a drug trafficking offense and money
laundering. But Williams has not been convicted or even charged with a crime.

The government notified Williams in May that it had initiated civil
asset forfeiture, a mechanism that enables authorities to take and
keep possessions without a criminal conviction.

There are two key differences between a civil action and a criminal
one in this context. In the criminal justice system, a defendant must
be proven guilty beyond a reasonable doubt before she's punished.
With civil forfeiture, a property owner must demonstrate before a
judge in civil court that the items seized haven't been used in
conjunction with or to perpetrate a crime. In order to get property
back, owners must illustrate, for instance, that it was purchased
with money earned through employment or inheritance. The defendant's
property is essentially guilty unless and until it's proven innocent.
The second key difference in a civil proceeding is that a defendant
isn't entitled to legal representation if he can't otherwise afford
it. For someone like Williams, who has had his assets seized and
business destroyed, leaving him in no position to pay an attorney,
proving property innocent isn't easy.

Law enforcement representatives say civil forfeiture is an important
tool to deter crime. Yet the United States Department of Justice in
Montana declined to comment for this article or even say how many
people in the state are now being subjected to civil asset
forfeiture. Interviews conducted by the Independent, however,
indicate that a growing number who had participated in Montana's
ostensibly legal medical marijuana industry are losing their
belongings to civil forfeiture. And that's leading more Montanans to
question the procedure, joining an already diverse group that
includes the American Civil Liberties Union, the Cato Institute and
the Montana Shooting Sports Association, all of whom say civil
forfeiture is too often unjust.

"That someone can come and take all of your firearms from you in this
country with no charges filed against you, with no due process, with
one judge signing a warrant on evidence--we can't even see the full
scope of that yet," Williams says.

Attorney Chris Lindsey served as in-house legal counsel for Montana
Cannabis until December 2010. He's now in private practice in
Missoula, specializing in cannabis cases. Lindsey contends that
initiating forfeitures without convictions in the cases of medical
marijuana caregivers flies in the face of the state's 2004 Medical
Marijuana Act, which says that designated marijuana providers cannot
be subject to forfeiture unless they are proven guilty of a crime.

Lindsey also points to a memo written in October 2009 by Deputy U.S.
Attorney David Ogden, which stated that the federal Department of
Justice would not pursue individuals or caregivers who were acting in
compliance with state medical marijuana laws. "We really took that to
heart and thought that if we're compliant with state law, then that's
good," Lindsey says.

Lindsey isn't currently representing Williams. But he has two clients
who have had their possessions seized and kept, and neither has been
charged with a crime.

It's tough for some to believe that people can have their assets
taken without being proven guilty of any charges, Lindsey says. "When
you start getting into forfeiture, you get into an area that not a
lot of people really know very much about. But when they start to
learn how it works and where it came from and how it's used, it's the
kind of thing that people will be surprised by--'Gee, I didn't know
it was that way. And is that the way we want it to work?'"

Talkin' 'bout a revolution

As the sun sank over Boston Harbor on a spring night in 1768, crewmen
aboard John Hancock's sloop Liberty quickly unloaded a cargo of
Portuguese wine. They had reason to hurry: Their boss was trying to
skirt a tax on the Madeira. It wasn't the first time Hancock caused
trouble with British customs officials. He was a shrewd businessman
and a known smuggler with no love for Great Britain or the taxes it imposed.

When the British got wind of Hancock's antics, they moved to make an
example of him. On June 10, 1768, the Crown seized the Liberty,
raising a fury among Bostonians already fed up by hefty import duties
and conscription into the armed forces, among other thorns. As
historian Benson J. Lossing writes, "A mob followed the custom-house
officers, pelted them with stones and other missiles, and broke the
windows of their offices. The mob seized a pleasure-boat belonging to
the collector, and after dragging it through the town, burned it on
the Common."

The incident cemented Hancock's reputation as a rebel. It also fueled
the growing resolve among colonists to fend off Britain's overarching power.

Yet, despite the fury generated by the Liberty affair, the first
American Congress in 1789 enacted civil statutes authorizing the
seizure of ships and cargos involved in criminal activity. Now that
the British no longer ruled from afar, the new American government
wanted to take the boats of owners who fled to avoid piracy or
slave-trafficking charges. Civil forfeiture ensured property couldn't
be used to commit another offense. It also provided a mechanism to
recover duties owed on smuggled goods.

American jurists have struggled to reconcile forfeiture with
constitutional protections. A particularly tricky question came
before the Supreme Court in 1920, when a car driven by J.G. Thompson
was apprehended transporting 58 gallons of distilled spirits. Law
enforcement seized the car because Thompson had skirted the tax owed
to the feds for the booze. However, Thompson still owed money on the
vehicle. And the Grant Company, which held title on the Hudson,
valued at $800, wasn't keen on having its property taken. The company
filed suit, asserting that seizing and not returning an innocent
third party's property violates the Fifth Amendment, which states,
"no person shall...be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for public
use, without just compensation." Supreme Court Justice Joseph McKenna
said in the court's 1921 opinion in J. W. Goldsmith, JR.-Grant Co. v.
United States that there was streng! th in the plaintiff's argument.
However, he wrote, the laws governing civil forfeiture already were
"too firmly fixed in the punitive and remedial jurisprudence of the
country to be now displaced."

Civil asset forfeiture got a considerable boost in 1970, 1978 and
1984 when Congress enacted a series of laws that corresponded to
increasing efforts by the federal government to police drug crimes.
Those laws dramatically broadened the scope of forfeiture law. The
1984 Comprehensive Crime Control Act made a significant change in how
forfeiture proceeds were distributed, creating two federal forfeiture
funds. The 1984 legislation also included a provision that gave
forfeiture proceeds to local law enforcement agencies that helped seize assets.

In 1993, as the war on drugs set its sights on more fronts, Supreme
Court Justice Clarence Thomas, in an opinion, joined jurists like
McKenna in voicing misgivings about civil forfeiture. The case,
United States v. James Daniel Good Real Property, involved a
forfeiture action taken against a convicted drug dealer's home. "I am
disturbed by the breadth of new civil forfeiture statutes, which
subjects to forfeiture all real property that is used, or intended to
be used, in the commission, or even the facilitation, of a federal
drug offense," Thomas wrote.

Critics of forfeiture such as Eapen Thampy of Americans for
Forfeiture Reform say that the mechanism today perpetuates America's
war on drugs by funding it with an infinite stream of seized assets.
It's ironic, Thampy says, that the government is engaging in the same
type of behavior that sparked the American Revolution 225 years ago,
in order to disarm nonviolent marijuana sellers. "It's really
crazy...that after people fought a war to rid themselves of these
laws--and of what I term mercenary law enforcement--we've returned to
the same state of affairs."

'Law enforcement just has to call'

Chris Williams, who has white hair that makes him look older than his
37 years, says the past 12 months have been tough on him. After the
March bust of Montana Cannabis, he had no income. He defaulted on the
lease securing his Helena home, put his belongings in storage and
went fishing for a couple of weeks with his 15-year-old son.

Williams has struggled with depression. The business he worked for
two years to build was destroyed, and he has had no idea if criminal
charges against him are imminent. When he and his son returned from
their fishing trip, they stayed at friends' homes. One of those
friends is now putting up his son, Sage, in a spare room while
Williams often sleeps in his camper-topped pickup truck.

Williams, along with Tom Daubert, Richard Flor and Chris Lindsey,
grew Montana Cannabis into a multi-million-dollar enterprise, one of
the largest dispensaries in the state. (Both Daubert and Lindsey say
they cut ties with Montana Cannabis last winter.) Williams says that
throughout the company's two years, its operators consistently worked
to be transparent. They gave tours to legislators, Montana DOJ
officials and local law enforcement.

"I told them all, 'Oh yeah, we have an open-door policy. Law
enforcement just has to call,'" he says. "And it's funny, they did
just have to call, but that's not what they wanted. It seemed like
they wanted to stop us from doing business."

Authorities continue to take medical marijuana caregivers'
belongings. On June 23, Missoula Police stopped 38-year-old William
George for rolling past a stop sign. George co-owned Helping Hands
Caregivers, on West Broadway. The dispensary was in the process of
selling the remainder of its pot before new restrictions on medical
marijuana took effect July 1. George says he had just delivered an
ounce to a patient when he was pulled over. Police cited him for
having no license and no insurance. They searched the car and seized
roughly an ounce of marijuana and $588. They also took the car, a
black 2005 Mazda 6 Sport valued at about $6,700.

"I even told them I was trying to use up my product," George says.

The state initiated civil forfeiture against George in July. It
intends to keep the car and the money. Chris Lindsey is the former
caregiver's attorney. Lindsey surmises that law enforcement believed
George was somehow acting unlawfully under the state's medical
marijuana act. But the civil complaint does not expressly state why
police seized the car and George hasn't been charged with a crime. So
the two men remain unsure exactly why the car is being forfeited.

Lindsey says since March, there have been more raids on medical
marijuana providers in Montana than there were in California in eight
years under George W. Bush, Lindsey says. That's ironic in light of
the fact that when President Barack Obama campaigned for office, he
promised that, if elected, he would direct the U.S. DOJ to back off
prosecutions of medical marijuana providers. "It's almost getting
personal, considering how small the community is," Lindsey says.

On Aug. 12, the DOJ moved to keep $78,000 from a bank account
belonging to Christopher Durbin of Four Seasons Gardening, in
Columbia Falls. The DOJ says in its civil forfeiture filing that Four
Seasons was intentionally evading federal reporting requirements on
proceeds generated from illegal marijuana sales. DOJ says the company
worked in conjunction with two other Columbia Falls businesses: Good
Medicine Providers, a cannabis dispensary, and Northern Lights
Medical, a medical marijuana clinic. Law enforcement searched all
three businesses March 14. In addition to the cash, agents seized
bulk marijuana, 224 plants, cash and growing equipment.

These Montana raids and forfeitures seem distinctly aggressive when
examined in a national context, alongside other states that have
legalized medical marijuana, Lindsey says. "It does appear that
what's happening in Montana is fairly unique, that they have targeted
people who were in compliance with state law."

Those targeted in the March raids say the timing was suspicious. The
raids occurred on the same day the Montana Legislature debated a bill
that aimed to reverse the state's voter-approved medical marijuana
law. "It was more like a vendetta or a political action then it
wastrying to protect and serve the public," Williams contends.

The bill didn't pass, but marijuana caregivers got the message
nonetheless: law enforcement is not keen on allowing a large,
for-profit medical marijuana industry to grow in Montana.

Lindsey believes there could be a monetary incentive for the federal
government to run roughshod over state law. "You know," he says, "you
don't make money by going out and breaking up a couple in a
partner-family member assault situation. But you do make money if you
can take somebody's rig and take all the cash that they have on them,
and sell their gun and anything else."

Wanna buy a Picasso?

Drug dealers usually don't leave calling cards. When an agent stops a
car with heroin in the trunk, chances are the driver will claim he
didn't know the drugs were there, says Federal Law Enforcement
Officers Association President Jon Adler. Convictions on cases like
that are tough to get. "You can identify the crime but not the
criminals," Adler says. "So what you're left with is the loot, if you
will, of the crime." Seizing assets is "another way of disarming a criminal."

Adler's organization represents more than 25,000 federal law
enforcement officers in 65 agencies nationwide. They police crimes
such as fraud, identity theft and terrorism--all of which, Adler
points out, do tangible and lasting harm. Civil forfeiture is an
effective weapon to thwart those crimes, he says. "When one engages
in wrongdoing and, in the process amasses a considerable amount of
wealth, it makes sense for us--not just from a financial perspective,
but from a tactical perspective--to target those assets in
consideration of forfeiture."

Once items are forfeited, the property is sold, placed into official
use, destroyed, as is often the case with weapons, or transferred to
another agency. The United States Marshals Service administers the
Department of Justice's Asset Forfeiture Program. Its website
currently lists multiple items for sale, including a yellow
43.51-carat diamond, a Picasso, a 2001 Lexus SUV, a duplex on New
York's Park Avenue, and 10 acres of undeveloped land, for $79,000, in Helena.

Criminal and civil forfeitures of cash and property brought more than
$2.5 billion into federal coffers last year. Compared to states like
Florida and New York, Montana is not a significant breadwinner.
Federal prosecutors in New York secured nearly $650 million in
criminal and civil forfeitures last year; Montana collected $207,904
in the same period.

Money generated through forfeiture is used to fund local, state and
federal law enforcement efforts and to compensate crime victims.
According to the DOJ, the agency returned $400 million in 2008 to
people harmed by financial crime. The federal government last year
paid out more than $500 million in what's called "equitable sharing"
to more than 8,000 partnering law enforcement agencies last year, the
Wall Street Journal reports. That marks an increase of 75 percent
from a decade ago.

In Missoula, Police Chief Mark Muir says the majority of MPD's
forfeitures are through the state, which typically engages in
criminal forfeiture, meaning a suspect must be convicted of a crime
before his assets are taken. Muir estimates that this year the
federal government has awarded about $10,000 of equitable sharing to
the Missoula High Intensity Drug Task Force, which includes city and
county law enforcement and the Missoula County Prosecutor's Office.
Muir, who chairs the drug task force's executive board, says that
during the past 10 years, the partners have collected about $150,000
from forfeited assets.

State and federal forfeiture proceeds in Missoula pay for drug
prevention education, SWAT team crisis negotiator training and the
care and feeding of the city's drug dog, Ryker, among other things.
Muir is able to draw from the funds to offset the costs of equipment.
Forfeiture funds aren't considered a reliable funding source, Muir
says, so any equipment purchased with them must be considered a
one-time investment.

Money generated through forfeitures helps his department, Muir says,
but it's not an incentive to hyper-aggressive policing. "A lot of
people don't like the asset forfeiture because they think it makes
folks a target of law enforcement, to go after them for funding and
so on. But we've never found that to be a compelling reason to do
it--nor is it fruitful enough."

Adler, of FLEOA, says the burden of proof is on the government to
show that items seized were more likely than not involved with
criminal activity. It's not as though the government tiptoes up
behind unsuspecting individuals to take their cars and their homes,
he maintains. "It doesn't work that way. And it shouldn't work that
way. That's not what our whole judicial system is about."

The meaning of fighting back

On a recent sunny summer day, Tim Baldwin talks on a cell phone in
front of the Flathead County Justice Center, in Kalispell. His accent
is distinct, betraying a Pensacola, Florida upbringing. It's a slow
drawl that only deepened during his time at Cumberland School of Law
in Birmingham, Alabama.

The 32-year old author and attorney moved to Montana last September.
He opened a private law practice in Kalispell in January. Less than a
month later, Baldwin landed his first medical marijuana case. "It
just sort of snowballed from there," he says.

Baldwin's father instilled in him a passion for politics and law.
Chuck Baldwin, a Baptist pastor, is a former leader in Jerry
Falwell's Christian evangelical lobbying group, the Moral Majority.
Chuck, like his son, enjoys shaping civil discourse. He ran for
president on the Constitution Party ticket in 2008 and garnered the
endorsement of libertarian icon Ron Paul. Father and son co-authored
a recent book, Romans 13: The True Meaning of Submission, that uses
biblical teachings to tackle political issues.

Nearly the entire Baldwin family moved to Montana in the past year.
Chuck is starting a ministry in the Flathead Valley. Tim seems to
think he's landed in the right place at the right time to take a
stand against what he sees as federal meddling in state business.

Among Tim's clients is Chris Williams. Baldwin filed suit in May
against the federal government on behalf of Williams and other
plaintiffs who were raided this spring. None of them have been
charged with a crime. Many face civil forfeiture.

"To be shut down essentially overnight by the federal government and
to have to prove your innocence before you can have your property
back, it just strikes at the heart of constitutional violation of due
process," Tim says. Civil forfeiture, he adds, "is unconstitutional,
and it's a dangerous tool."

Forfeiture is just a symptom of a broader problem, he continues--the
federal government perpetually expanding its power. "Since the turn
of the 20th century, there has been such a strong push and even a
change in ideology regarding what the federal government's role is.
For more than 100 years, the federal government's impact and its
influence and its reach have grown more and more and more beyond what
the constitutional limits allow. You can take just about any subject
and show where this is taking place." Asset forfeiture, Baldwin says,
"is just the latest one within the state of Montana--maybe a more
obvious one that people can see."

The 10th Amendment says powers not delegated to the federal
government or prohibited by the Constitution are left for the states
to decide. Baldwin argues in the suit that because the U.S.
Constitution doesn't specifically grant the federal government the
power to regulate medical marijuana, it is violating the 10th
Amendment by overruling Montana's medical marijuana law.

The suit aims to reassert the right of Montanans to make their own
decisions when it comes to health care. Baldwin says if it's
successful, it could have broader implications for federal education
mandates and even gun laws. "For me, it's not about marijuana," he
says. "It's about following the Constitution...When they come into a
state and start arresting people and destroying property, making you
prove your innocence before they're going to give you the protection
of the law, that's a serious problem."

Won't back down

Chris Williams is traveling in the Midwest on a recent late summer
day. The trip marks his launch of a new national effort, the Rights
Restoration Movement, in which Williams aims to educate citizens
about their constitutional protections. The former medical marijuana
caregiver feels compelled to fend off what he sees as a gross
overstep on the part of the federal government. "I can't imagine what
an uproar there would be if a logger logged without the
(government's) approval and they came and took all of his equipment,
took everything that he used to make a living and never charged him
with a crime," he says. "I see this as similar. It's just a different
commodity."

Williams predicts that there will be a lingering impact from law
enforcement's recent actions against Montana's medical marijuana
community. He says he already sees changes in his son, Sage--the
15-year-old has become increasingly mistrustful of government as he
watches it destroy his father's business and strip his possessions.
The impact doesn't end there, Williams says. Many of his former
employees lost their homes when Montana Cannabis was shut down. They
too have children. "Those kids, these people, are going to grow up
and they're not going to view our government like my parents did or I did."

Lately Williams has been writing bits of the Declaration of
Independence on Facebook, but replacing "The King" with "The
Government." His Facebook friends like the modern take on old
principles. Now that his business is gone, he stays busy picking up
odd jobs, but he says he still doesn't sleep well. He could yet be
charged with a crime. Williams's former Montana Cannabis partner
Richard Flor is facing decades in prison. Williams keeps that in mind
when he talks to his son, always punctuating plans with "that's if
they don't lock me up."

Williams says he's called the DOJ twice to ask if he's going to be
charged. "I've said, 'Hey, this is ridiculous. They should have come
with charges immediately after they had a search warrant'...It
doesn't make sense to me that they wouldn't have a case together by now."

Some of Williams' peers from what's left of Montana's medical
marijuana industry declined to comment for this article, saying
they're worried that telling their stories publicly will make them
more vulnerable to prosecution.

Despite the fact that drawing attention to himself could exacerbate
Williams's legal problems, he says he won't stay mum. "I was taught
that if someone hits you or tries to hurt you, that you don't take it
lying down--and you let them know that you're never going to stop."