Defense: ruling a setback, not a defeat
LAKE COUNTY >> The temporary restraining order sought by plaintiffs who allege their fourth and fourteenth amendment rights were violated by Lake County authorities was denied by a federal court on Thursday. However, with the chance to amend their case in an appeal for a preliminary injunction, plaintiffs argue the ruling is a setback, not a defeat.
The lawsuit, filed Aug. 30 by attorney Joe Elford, seeks future protection for residents from alleged unlawful search and seizures that have been conducted by Lake County law enforcement since the passage of Measure N, as well as damages for residents that have already been subject to such raids and lost their marijuana plants.
However, the San Francisco court struggled to find proof in the case submitted by Elford that the plaintiffs who had already been raided would be subject to further damages in the future or that Lake County authorities would continue to conduct warrantless raids without providing notice on people who had not already been raided.
“For those plaintiffs who have already been raided, there is no evidence that they will be raided again anytime soon; the natural inference is that they will not be, unless marijuana plants grow exceedingly quickly,” the court”s order stated.
“Plaintiffs have provided no evidence that Lake County intends to conduct additional searches or seizures against the named or Doe Plaintiffs,” the court”s order continued. “Mere speculation about the intentions of the County is not enough.”
Although an order for a temporary restraining order and a preliminary injunction are governed by the same standard, Elford said that because the court has cleared out what it believes to be the weaknesses in the argument submitted for the restraining order, the plaintiffs will be able to make a “much stronger” case for the preliminary injunction.
“The court alluded to some of these gaps, which can be filled by demonstration of a policy or practice that wasn”t just done by a rogue officer, but rather done as a concerted effort by authorities,” Elford said. “I think the court wants us to prove that and I think we can prove it.”
In Elford”s case for the preliminary injunction, he said he will be adding proof of residents who have not yet been raided but who are fearful that they will be raided to demonstrate there is outstanding harm at hand. He plans to provide those residents” identity under seal but is not willing to offer their identities to Lake County.
The court”s argument for its denial of the restraining order also found issue with the fact that, at oral argument, the plaintiffs “were unable to clearly answer whether Ordinance 2997 (Measure N) authorizes the alleged conduct” of the defendant officers. However, Elford said the problem lay with the Board of Supervisors (BOS) in their struggle to determine whether Measure N authorizes the officers” actions.
“You”ve got the supervisors themselves who don”t really know if Measure N authorizes them to conduct the seizures without advance notice. So if the supervisors that vote for it don”t know, how am I supposed to say whether it does or doesn”t?” Elford said. “I don”t think Measure N authorizes it, but we need to hear from them definitively as to what they thought the case was.”
The BOS had struggled with the issue during a meeting on Aug. 19 that heard residents” complaints over the raids. Notably, Supervisor Denise Rushing expressed her concerns with the wording of the measure.
“I knew the sheriff”s department would be involved, but I would not have supported it if I knew we were just handing over code enforcement to the sheriff”s department,” Rushing said. “The checks and balances aren”t there.”
Supervisor Rob Brown, on the other hand, felt law enforcement did not act outside of their authority.
“There are provisions in the ordinance that allow law enforcement to go in and enforce it without warrants,” Brown said in an interview Friday. “I don”t have any evidence to support the claim that they did anything outside their authority It”s been my experience with the law enforcement in Lake County that if they feel obligated to obtain a search warrant, they do.
“I thought it (the BOS meeting on Aug. 19) was an unfair hearing and I told them I wouldn”t participating in another hearing if law enforcement didn”t have the opportunity to participate in it,” Brown added. “By turning hearings into a public lynching of law enforcement, I don”t have a lot of concern about what their (residents who were raided) problems are.”
Attorney Ron Green, who is not officially involved in the case, argues the measure does not allow for the actions law enforcement had allegedly taken.
“If it purports to authorize abatement without notice and without warrants, then it is unconstitutional on its face,” Green stated. “But if it does not specifically authorize this activity, then it is being enforced ultra vires (beyond powers), in an unconstitutional manner.”
Elford was given until the end of next week to make his case for the preliminary injunction and expects the court will make a decision within the next three weeks.
“We obviously intend to move forward,” Elford said. “This is going to be a process, but this is clearly not the end of the process.”
Leah DeAnda can be reached at 900-2009
