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.
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