LAKE COUNTY >> The attorney representing Lake County and four county officials as defendants in a federal lawsuit concerning warrantless marijuana raids on Monday filed a response to the plaintiffs” complaint, as well as a motion to dismiss the case in its entirety.
The response provides arguments as to why the plaintiffs have failed to show a strong likelihood of success in their claims for injunctive relief, a strong possibility of irreparable injury and a greater hardship to themselves than to the defendants or to the public interest.
Subsequently, the motion to dismiss, which is scheduled to be heard on Nov. 24, contains a majority of the arguments made in the defendants” response.
The defendants of the case include Lake County Sheriff Francisco Rivero, Lake County Sheriff”s Office (LCSO), Interim Undersheriff Chris Macedo, Lt. Loren Freeman of the California Department of Fish and Wildlife and Lake County Community Development Director Richard Coel. The eight named plaintiffs allege they were subject to unconstitutional searches and seizures following the passage of Measure N.
Predominately, the response that serves as the defendants” opposition to the plaintiffs” motion for a preliminary injunction addresses technicalities of the case filed by the plaintiffs.
While each plaintiff of the case “alleges to be residents of Lake County,” John Whitefleet argues the court cannot begin any analysis of whether each plaintiff had a “reasonable expectation of privacy in the place entered or property seized” without plaintiffs establishing a property right first.
It also argues that the plaintiffs failed to allege sufficient facts regarding Rivero, Macedo and Coel”s role in the alleged constitutional deprivation, citing Title 42 of the U.S. Code.
Furthermore, the response alleges that the plaintiffs must seek a state-based tort remedy to pursue a constitutional due process violation before bringing their claims for damages to a federal court.
The response outlines other inefficiencies in claims made by the plaintiffs under several sections of the U.S. Code, the California Government Code, the California Civil Code.
Notably, the opposition to the preliminary injunction criticizes the plaintiffs” complaint for providing a weak argument to show not only a possibility of future harm, but an actual likelihood.
“There is nothing (in the complaint) to support ”the reality of the threat of repeated injury,”” the response states. “Plaintiffs have provided no evidence that Lake County intends to conduct additional searches or seizures against the named plaintiffs.”
While the plaintiffs” complaint had pointed to the Board of Supervisors (BOS) meeting on Aug. 19 as evidence of the county”s official authorization of law enforcement”s actions, the response dismisses the use of officials” comments in the meeting as “such evidence is not properly before the court.”
Attorney Joe Elford, representing the plaintiffs, said he submitted the official DVD of the BOS meeting for judicial notice Tuesday following the submission of Whitefleet”s response.
Finally, the response states that while the plaintiffs dismissed the exigency of the raids, “there are numerous various considerations that are at play, including the health and safety risks to polluting the waterways, depleting the water sources (and) over usage of utilities.”
Whitefleet explains the raids were allowed under Measure N, which provides for warrantless summary abatements under such exigent circumstances, as California, as well as water districts within Lake County, are under states of emergency regarding water.
“The dangers, and thus exigency, presented by the widespread use of utilities, diverting water sources, or over use ? in these drought conditions, presents considerations of exigency under these circumstances,” the response states. “Other dangers posed include increased crime. Cumulative impacts to water resources and supply create and immediate danger to residents, not to mention odor is very significant in these communities.”
Whitefleet could not be reached by press time to discuss his response or motion for dismissal of the case.
Elford said his plaintiffs” biggest obstacle to obtaining a preliminary injunction from the court would be showing the likelihood of repetitive harm to both the named plaintiffs and other medical marijuana patients in the county. Another question is whether the court will return to discussing the alleged unconstitutionality of law enforcement”s actions if the request for a preliminary injunction is denied. However, regardless of the injunction”s outcome, Elford said the case will move into phase two of litigation, which will consider damages owed to the plaintiffs.
“Even if the court denies the motion for a preliminary injunction and if law enforcement returns to its old ways Tuesday afternoon by raiding people without warrants or notice, we could then introduce new facts to try to persuade the court of the likelihood of reoccurrence,” Elford said.
Additionally, Elford said his plaintiffs” tort claims will be filed with the state within the next week, but does not believe that under federal court, exhaustion of state law remedies is a necessary precursor to seeking injunctive relief.
In response to Whitefleet”s definition of the exigent circumstances surrounding the raids, Elford said their justification would allow for the warrantless search and seizure of all marijuana plants growing in Lake County.
“That”s an assertion of authority that should offend every American citizen,” he said.
Monday the court will hold the hearing for the preliminary injunction. The court could deny the motion, grant only the main eight plaintiffs of the case injunctive relief or order a preliminary injunction against the defendants from conducting such warrantless summary abatements in the future for all medical marijuana patients in Lake County, according to Elford.
