Marijuana patients serve TRO on Lake County law enforcement to stop warrantless searches, but judge does not believe in property rights and throws it out

5 Sep
From Lake County News:
Temporary restraining order filed against Lake County over Measure N marijuana rules
Wednesday, 03 September 2014 00:54 Elizabeth Larson
LAKE COUNTY, Calif. – A group of medical marijuana patients has served a temporary restraining order against the county of Lake in an effort to stop enforcement of Measure N, the county rules for medical marijuana cultivation voters passed in June.
The complaint was filed in federal court on Friday by a number of named and unnamed plaintiffs who are seeking a preliminary injunction.
The plaintiff group includes 60-year-old patient Mona Allen, who was growing six mature plants, 66-year-old patient Paul Ray Harris who was growing nine plants and 70-year-old patient Nina Faye Sikes who, together with her elderly husband, was growing 14 immature plants.
Defendants are the county of Lake, Sheriff Francisco Rivero, Undersheriff Chris Macedo, Lt. Loren Freeman of the California Department of Fish and Wildlife, Community Development Director Rick Coel and 50 unnamed individuals.
County Counsel Anita Grant said a hearing on the temporary restraining order request was held Tuesday afternoon in San Francisco.
She said the judge did not make a decision Tuesday, but instead took the matter under submission.
The case is alleging that the Lake County Sheriff’s Office – which is responsible for enforcing Measure N – has been conducting unconstitutional raids on properties around the county without search warrants or abatement notices required under code enforcement law.
The plaintiffs claim violations of their state and federal constitutional rights, which protect against unlawful search and seizure, invasion of privacy and a denial of due process.
They also allege sheriff’s personnel are ignoring patients’ refusal to search their property and prying open locked gates to gain access.
County officials have denied forcing their way into properties without consent.
In their declarations, Allen, Nina Sikes and her husband Elvin Sikes – all Clearlake Oaks residents – said their grows were eradicated by county officials on Aug. 1.
Allen said she was not at home at the time, and that law enforcement passed through two fences – prying one of them open – in order to get to the six mature and six immature plants she and her husband were growing on their one-acre parcel.
Elvin Sikes, who with his wife Nina had 14 immature plants on their half-acre parcel, alleged that law enforcement “burst through two closed fences without my consent” before chopping down the plants.
“I was at home at the time of the raid, but I did not voluntarily consent to any search or seizure,” Elvin Sikes said in his declaration.
“Although this case is about medical marijuana patients being unfairly targeted, it’s more about privacy and property interests that should be protected by the state and federal constitutions,” said Joe Elford, a San Francisco-based lawyer and chief counsel for Americans for Safe Access, who is working with attorney Jeremy Blank on behalf of the plaintiffs. “The county is not above the law, and it has an obligation to respect people’s constitutional rights when carrying out local policy.”
Last December, the Board of Supervisors unanimously approved Ordinance No. 2997, which bans outdoor cultivation in community growth boundaries; limits plant numbers on parcels larger than one acre outside of community growth boundaries to six mature or 12 immature plants; prevents grows on vacant parcels; limits indoor grows to 100 square feet or less; keeps outdoor cultivation 1,000 feet from schools, parks or other facilities serving children, and 100 feet from water bodies; allows collective grows not exceeding 48 mature plants or 72 immature plants on agriculture-zoned parcels of 20 acres or more; and makes the Lake County Sheriff’s Office responsible for enforcement.
The ordinance ended up going on the June 3 ballot due to a successful referendum, with voters approving it 51.6 percent to 48.4 percent.
Measure N went into effect July 11, 10 days after the Board of Supervisors approved the final election results for June 3.
Last month, local officials – assisted by Freeman – conducted enforcements in the Spring Valley area.
During a Board of Supervisors meeting on Aug. 19, Freeman estimated 30 properties had been inspected in that community.
At that same meeting, Allen and a number of growers complained to the board about the enforcements and promised to sue.
Elford previously sued the county in Lake County Superior Court over its temporary medical marijuana cultivation rules in 2012.
That ordinance allowed for up to six plants to be grown outdoors on a half acre or less, 12 plants on parcels of half an acre to one acre, 18 plants on parcels one to five acres in size, 36 plants on five- to 40-acre parcels, and a maximum of 48 plants on parcels 40 acres and larger.
In that case, Elford argued those limits were not enough to satisfy the plaintiffs’ medical needs.
In August 2012 Elford’s three clients received a preliminary injunction which ran out at the end of that year.
The case was dropped in June 2013 before the permanent injunction stage and about a month after the California Supreme Court issued a decision in the City of Riverside v. Inland Empire Patients Health and Wellness Center Inc., which upheld the land use planning powers of local governments.
A local judge later denied Elford more than $150,000 in attorney’s fees in the case.
 
But…

Federal judge denies temporary restraining order request filed over Measure N enforcement

LAKE COUNTY, Calif. – A federal judge on Thursday denied a request filed by a number of medical marijuana patients who sought a temporary restraining order over searches and eradications carried out under the county’s Measure N marijuana cultivation rules.

In his ruling, US District Judge Thelton E. Henderson did not find that the plaintiffs’ claims met the legal standard required to grant the temporary restraining order, but left the door open for moving forward on a preliminary injunction.

A group of plaintiffs – including Mona Allen, Carl Ray Harris, Jonathan Holt, Shaun Jones, Scott Outhout, Elvin and Nina Fay Sikes, Nicole Van Schaik, Preston Warren, the California Chapter of the National Organization for the Reform of Marijuana Laws and 200 unnamed individuals – filed the temporary restraining order last Friday.

The defendants are the county of Lake, Sheriff Frank Rivero and a number of other local officials, as well as Lt. Loren Freeman of the California Department of Fish and Wildlife, as Lake County News has reported.

The cases alleges that the plaintiffs’ constitutional rights were violated by a series of warrantless searches this summer during which county and state law enforcement officials eradicated their marijuana plants.

Measure N – known officially as County Ordinance No. 2997 – was passed by voters in June and went into effect July 11. Among other things, it prohibits outdoor marijuana grows within community growth boundaries – which are primarily residential areas – as well as on vacant parcels.

A hearing was held on the temporary restraining order application on Tuesday afternoon before Henderson, at which point he took the matter under submission.

On Wednesday, Henderson had requested more information from the plaintiffs by noon that day, according to County Counsel Anita Grant.

Court documents indicated that the plaintiffs’ attorneys, led by Joe Elford, filed that supplemental information as requested, but that it failed to convince Henderson of the restraining order’s necessity.

In this Thursday ruling, Henderson denied the temporary restraining order request based on three of four legal standards.

In the first, Henderson did not find that the plaintiffs had proven the likelihood of irreparable harm.

In their filings, the plaintiffs claimed a loss of sense of security and suggested their property would be unconstitutionally seized in the future, both arguments which Henderson said he did not find persuasive.

Henderson went on to note that a mere loss of security does not justify a temporary restraining order in this case.

“Plaintiffs have not produced a single case holding that the loss of security resulting from a previous violation of constitutional rights is itself an irreparable injury requiring injunctive relief,” Henderson wrote.

He added that, even if they had, such a case would contradict a 1983 US Supreme Court decision, City of Los Angeles v. Lyons.

“In that case, in the context of whether the victim of a police chokehold had pled a sufficient injury for standing purposes, the Court explained that ‘It is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiff’s subjective apprehensions,’” Henderson wrote.

Henderson went on to cite a case involving a preliminary injunction granted in an Arizona US district court in which the Ninth Circuit, in affirming the injunction, “did not endorse the idea that ‘exposure to a policy’ is ‘itself an ongoing harm’.”

The plaintiffs, in Henderson’s view, also did not show a likelihood of future injury.

Case filings showed the plaintiffs had relied on the case NORML v. Mullen, in which a preliminary injunction was granted against the unconstitutional use of helicopters and warrantless searches as part of the Campaign Against Marijuana Planting. CAMP subjected growers to returned searches each season.

“The case before the Court is highly distinguishable. Unlike in NORML, Plaintiffs have provided no evidence that Lake County intends to conduct additional searches or seizures against the named or Doe Plaintiffs,” Henderson wrote. “Mere speculation about the intentions of the County is not enough. Importantly, the Ordinance in this case, unlike the CAMP policy in NORML, does not explicitly rely upon ‘returning to the same areas’ with the objective of tiring out targeted growers. Further, Plaintiffs have neither alleged nor demonstrated that they have been subjected to the unconstitutional activities repeatedly.”

Henderson continued, “Assuming Plaintiffs’ allegations are true, the identified Plaintiffs have already lost their marijuana plants and had their privacy invaded. Absent additional evidence, Plaintiffs’ fear of prospective police intrusion appears to be little more than ‘subjective apprehensions,’ rather than ‘the reality of the threat of repeated injury.’ Ultimately, the ’emotional consequences of a prior act simply are not a sufficient basis for an injunction absent a real and immediate threat of future injury by the defendant.’ Without some evidence that Defendants’ might violate the Constitutional rights of Plaintiffs in the next fourteen days, a TRO is unjustified.”

The cases and declarations the plaintiffs used in their filings also were insufficient, in Henderson’s view, to show that the county of Lake has an official policy authorizing the behavior the plaintiffs are complaining about or that the plaintiffs are likely to be harmed again anytime soon.

During oral arguments, the plaintiffs were unable to clearly answer if Ordinance No. 2997 authorized the alleged conduct or if the defendant officers were acting beyond their legal authority, Henderson wrote.

“Without Plaintiffs more fully articulating this aspect of their claim, the Court cannot find that the problematic behavior was officially authorized, and therefore that Plaintiffs face a ‘real possibility’ that they will be raided again,” he said.

In his conclusion, Judge Henderson ordered the parties to meet and confer on a briefing schedule on the plaintiffs’ motion for a preliminary injunction, with a joint statement setting forth their areas of agreement and disagreement due on or before Sept. 12.

2 Responses to “Marijuana patients serve TRO on Lake County law enforcement to stop warrantless searches, but judge does not believe in property rights and throws it out”

  1. Jeffrey Dumas September 10, 2014 at 3:02 am #

    My family was raid and tag as a nuisance and made to look like king pins, 2 weeks later we were home invaded and week after invasion Grand Jury, After much stress recovering came the worst still. Month and a half after being victims of gun fire, we were abated even after complying with a 8k septic wrote off as complying with same department. Nothing was filed and march 14th at 5pm Friday I was home and finished repairing a rototiller implement that our tractor uses for fire breaks and income I was forced off property while fake contractor agreed to work. That weekend after I was arrested for trespassing on family land owned and taxes up witnessed everything worth value in ten days stolen and no where in town to be found.During their acts I was able to get photos but risk cause I was attacked and out numbered. To this day I my elder folks have suffered dearly and for I have been attack from locals that are gang related to home invaders. Locals departments turned their heads 3X at victims witness. Also to this day the invaders have not been sentenced. Catch , my fathers 911 call when I barely escaped from shot gun fire. There was a chase when they made it to town 10 miles from our ranch. Well a woman was killed from head on with police… Link has photos and proof to help us and who ever with info or legal profession. Thanks Its been hard alone and sorry for and bad grammar https://www.google.com/+HopalongHighHigh

    • Juanita Sumner September 10, 2014 at 5:15 am #

      Thanks for sharing your horrific story. I notice you are over 60 years of age and your parents are in their 80’s? I am not surprised – law enforcement is rabid for funding these days, they will literally throw little old ladies out of their homes.

      I had to edit your comment for something word-press does not allow, but thanks for sending in this story – for every story we hear, there’s 10 more out there. This is what they did back east with illegal liquor “stills” – oftentimes the property was on the auction block within a week after the family was thrown off with nothing but the clothes on their backs. They want you out, they want to clear your property, sell it at today’s prices and get a lot more in property taxes.

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