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.

click to enlarge Former Montana Cannabis co-owner Chris Williams discusses marijuana policy with Republican state Sen. Ed Butcher in 2009. In 2011, federal agents raided Montana Cannabis, seizing two vehicles, multiple firearms and $38,000 in cash, Williams says. - PHOTO BY CHAD HARDER
  • Photo by Chad Harder
  • Former Montana Cannabis co-owner Chris Williams discusses marijuana policy with Republican state Sen. Ed Butcher in 2009. In 2011, federal agents raided Montana Cannabis, seizing two vehicles, multiple firearms and $38,000 in cash, Williams says.

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.

click to enlarge Forfeiture “allowed this country to continue the war on drugs,” says Missoula attorney Chris Lindsey. “Now we’re stuck with it. Good luck getting rid of it.” - PHOTO BY STEELE WILLIAMS
  • Photo by Steele Williams
  • Forfeiture “allowed this country to continue the war on drugs,” says Missoula attorney Chris Lindsey. “Now we’re stuck with it. Good luck getting rid of it.”

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.

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