Constitutional Rights Protection - Official Oppression
A BILL FOR AN ACT ENTITLED: "AN ACT PROVIDING FOR PROTECTION OF
CONSTITUTIONAL RIGHTS THROUGH ACTIONS AGAINST PUBLIC OFFICIALS,
EMPLOYEES, AND AGENTS, AND ESTABLISHING THE CRIME OF OFFICIAL
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
NEW SECTION. Section 1. Protection of constitutional
rights. (1) This section may be cited as the "Montana
Constitutional Rights Protection Act".
(2) It is the purpose of the legislature to
create in state law civil actions that are adapted to the special needs
of Montana and that are similar to those created in federal law by 42
U.S.C. 1983 and by Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971).
(3) It is not within the official duty of a
public official, including any public official within the boundaries of
the state, to deny, restrict, or infringe upon the exercise of a
constitutional right of another person without due process of
law. A public official who denies, restricts, or infringes upon
the exercise of a constitutional right of another person without due
process of law does so as a private person and not as a public
official, and the act is not an official act.
(4) A public official who, under color of law,
denies, restricts, or infringes upon the exercise of a constitutional
right of another person is subject to a civil action by the other
person for compensatory and punitive damages. An action against a
public official is against the official as a private person acting
outside of the public official's official capacity. The public
treasury may not be called upon to pay any costs of legal defense for
or damages awarded against the public official.
(5) A public official who orders or directs
another public official or other person to deny, restrict, or infringe
upon the exercise of a constitutional right of another person is
accountable for the act of the directed or ordered public official or
other person as if the directing or ordering public official committed
the act. A person who attempts to cover up a violation under this
section or to obstruct an action or the prosecution of an action under
this section is also accountable for the act giving rise to the action
as if the person had committed the act.
(6) This section does not apply to:
(a) a peace officer making an arrest if the
officer has probable cause to believe that the person being arrested
has committed a crime or a peace officer serving a warrant if the
officer has reasonable cause to believe that the warrant has been
issued with probable cause, due process, and proper authority;
(b) a judicial officer acting in a normal and usual judicial capacity;
(c) a circumstance that includes full compliance with due process of law;
(d) a circumstance arising out of the lawful incarceration of a person convicted of a crime;
(e) a person or group of persons with
authority to recommend or grant parole or pardon, with respect to a
failure to recommend or grant a parole or pardon, a recommendation to
revoke a parole, or a revocation of parole;
(f) a juror with respect to circumstances arising out of service on a jury;
(g) a witness who truthfully testified at a trial; or
(h) a member of a legislative body with
respect to circumstances arising out of an authorized legislative act.
(7) For purposes of this section, a public
official is a person, officer, or agent employed or sanctioned by any
level or unit of any government or anyone else who presumes to assert
the authority to compel or prohibit the conduct of others on behalf of
any level of government, including a person elected or appointed to
office and an official of the federal government or of another nation
or an organization of nations.
(8) Either party to an action under this section must be granted a jury trial upon demand.
(9) In an action under this section, the
prevailing party is entitled to be awarded reasonable court costs and
(10) In an action under this section, the jury
or, in the absence of a jury, the court shall determine the damages.
(11) If this section conflicts with any other state statute, this section shall prevail.
NEW SECTION. Section 2. Official oppression. A person
acting or purporting to act in an official capacity or taking advantage
of such actual or purported capacity commits the crime of official
oppression if, knowing that his conduct is illegal or with reckless
disregard for the rights of another, he:
1. Subjects another to arrest, detention, search, seizure,
mistreatment, dispossession, assessment, lien, or other infringement of
personal or property rights; or
2. Denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity.
NEW SECTION. Section 3. Penalty. A person convicted of the offense
of official oppression shall be fined not to exceed $5000 or be
imprisoned in the state prison for a term not to exceed 5 years, or