LAKE COUNTY >> In advance of Monday”s hearing, Judge Thelton Henderson has issued a list of questions for both plaintiffs and defendants to consider in the federal case, which seeks a preliminary injunction against Lake County law enforcement”s alleged warrantless summary abatement of marijuana plants.
Henderson requested that the parties come prepared to address the questions on Monday when the court will hear the plaintiffs” motion for a preliminary injunction. His seven questions for the plaintiffs and six for the defendants follows the filing of the defence”s response to the plaintiffs” complaint and a motion to dismiss the complaint in its entirety.
Questions for the plaintiffs appear to repeat a similar practice used in the court”s decision that explains its reason for denying the motion to issue a temporary restraining order. Attorney Joe Elford, representing the plaintiffs, believed the court”s decision on the restraining order cleared out what it believed were the weaknesses in the plaintiffs” case and, by alluding to the gaps of the argument, gave plaintiffs the chance to strengthen their case.
Similarly, at least four of the court”s seven questions for the plaintiffs seem to give room for further argument or explanation for their case.
Specifically, question five, which ask the plaintiffs why the court shouldn”t apply the “heavy burden” test for the injunction, refers to court precedent that in order to obtain a preliminary injunction, a plaintiff must demonstrate four things: a strong likelihood of success on the merits, the possibility of irreparable injury, a greater hardship to the plaintiff than to the defendants and that the public interest favors granting the injunction.
Although the plaintiffs have struggled to prove the possibility of irreparable injury in the future, the Ninth Circuit has adopted a sliding scale approach in issuing injunctions so that a stronger showing of one element may offset a weaker showing of another. However, the defence argued in their response that a heightened burden applies to preliminary injunctions that seek to disturb the status quo, in this case that the plaintiffs” property should not have been, nor further abated under Measure N.
A majority of the questions for the defendants, however, focus on the defendants” reliance on the drought-related state of emergencies declared by the state and Lake County water districts to justify the plaintiffs” marijuana plants being eradicated under Measure N”s provision for exigent circumstances, which does not require issuance of warrants or the five-day abatement notice.
“The court has clearly given this matter a lot of careful thought and has asked the parties very insightful questions,” Elford said of the order.
Elford said it was not very common for courts to issue such questions but Henderson “does it all the time.”
Attorney John Whitefleet, representing defendants Lake County, Sheriff Frank 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, did not return calls by press time to comment on the questions.
The “Ordinance” referenced in the judge”s questions is Measure N.
Questions for defendants
1. How long does it take to obtain a warrant for a search and seizure such as those at issue in this case?
2. Why is the water used by, for example, six plants on less than an acre outdoors an emergency, justifying a warrantless search and seizure, but the water used by six plants on just over an acre outdoors, or the water used by as many plants as fit in 100 square feet indoors, perfectly acceptable under the Ordinance? Why are these standards not arbitrary?
3. Were the abatements at issue conducted according to the Ordinance”s summary abatement provision, or were these seizures consensual?
4. What is the justification for engaging in the immediate abatement of the marijuana plants as opposed to waiting only five days to abate them in accordance with the Ordinance”s notice process?
5. What other agricultural crops have been abated, summarily or otherwise, in order to save water in Lake County?
6. Besides the current drought, why does the balance of hardships favor defendants?
Questions for plaintiffs
1. Do all plaintiffs primarily reside in Lake County, and were the properties at issue their residential properties?
2. Several of the plaintiffs were clearly out of compliance with the Ordinance. Why do they not have unclean hands when they ask this court for equitable relief?
3. The court notes that one plaintiff had twenty-five medical marijuana plants on her property. Is this number of plants typical for a single medical marijuana patient?
4. Why does the balance of equities favor plaintiffs?
5. Why should the court not apply the “heavy burden” test for the injunction in this case?
6. How should the court write an injunction that protects plaintiffs” Fourth Amendment rights while also allowing the county to take action in legitimate emergencies?
7. The court is concerned that the allegations against the individual defendants do not state a claim for relief. How should the court write an injunction that protects plaintiffs” Fourth Amendment rights if the allegations against these officials are insufficient?
