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DISTRICT COURT, COUNTY OF LARIMER, COLORADO 201 La Porte Avenue, Suite 100 Fort Collins, Colorado 80521-2761 970-498-6100 __________________________________________ KALEB YOUNG, an individual, Plaintiff, v. LARIMER COUNTY SHERIFF’S OFFICE, a local governmental entity; SHERIFF JUSTIN SMITH, in his official capacity as LARIMER COUNTY SHERIFF; DETECTIVE PETE MESECHER, in his individual capacities, Defendants. __________________________________________ Attorneys for Plaintiffs: Robert J. Corry, Jr. #32705 Travis B. Simpson #43858 600 Seventeenth Street Suite 2800 South Tower Denver, Colorado 80202 303-634-2244 telephone 720-420-9084 facsimile [email protected] [email protected]
COURT USE ONLY _______________________
Case Number: 12CV1997 Div: 4A Ctrm:
RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Plaintiff Kaleb Young, through undersigned counsel, hereby respectfully
submits his Response to Defendants’ Motion for Summary Judgment, thereby
requesting that the Court deny Defendants’ Motion for failure to establish that
there is no genuine issue as to any material fact and that Defendants are entitled to
a judgment as a matter of law, and in support thereof, state as follows;
DATE FILED: April 3, 2013 0:15 PM FILING ID: CD08DA5E
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I. Nature of the Case
Kaleb Young is a Colorado resident who suffers from debilitating medical
conditions. Mr. Young’s Colorado-licensed physician recommended that he treat
the symptoms of his medical conditions through the use of medical marijuana. Mr.
Young was cultivating his own medical marijuana on September 22, 2010.
Furthermore, on September 22, 2010, Mr. Young was also cultivating medical
marijuana for numerous other Colorado medical marijuana patients for which he
was a primary caregiver pursuant to Colorado Constitution Article XVIII § 14.
On September 22, 2010, officers of the Larimer County Sheriff’s Office,
including Defendant Pete Mesecher (“Mesecher”), without checking with the
Colorado Department of Health and Environment Medical Marijuana Registry to
determine if the marijuana they suspected was being cultivated at Plaintiff’s
residence was medical marijuana, executed a search warrant on Plaintiff’s two
residences in unincorporated Larimer County. During the search, officers seized
42 live medical marijuana plants, raw medical marijuana, medical marijuana
ingestion implements and medical marijuana cultivation equipment. The 42
medical marijuana plants were cut at the base of the stem, leaving the dirt and
roots in the containers. The plants (consisting of the cut off stems and leaves) were
placed in plastic bags and booked into evidence at the Larimer County Sheriff’s
Office.
Plaintiff was charged with Cultivation of Marijuana, C.R.S. §18-18-
406(7.5)(c), Possession with Intent to Manufacture or Distribute Marijuana—Less
3
than Five Pounds, C.R.S. §18-18-406(6)(b)(I), and (III)(A), and Possession of
Marijuana—More than Twelve Ounces, C.R.S. §18-18-406(4)(c). Plaintiff raised
the affirmative defense of Medical Use of Marijuana by Persons Suffering from
Debilitating Medical Conditions, Colorado Constitution Article XVIII, Section
14(4)(b) as well as other defenses related to the medical use of marijuana.
Following a jury trial on November 23, 2011, Plaintiff was acquitted of all
charges based on his affirmative defense. As a result of the acquittal, all items
seized by Sheriff’s officers were returned to Plaintiff on December 2, 2011,
including the dried and withered stems and leaves of the 42 medical marijuana
plants. Upon return of his damaged property, Plaintiff suffered damages due to
Defendants’ failure to maintain the plants pursuant to Colorado Constitution Art.
XVIII § 14(2)(e).
Plaintiff brings this case to recover the value of the 42 medical marijuana
plants destroyed while in the possession and custody of the Larimer County
Sheriff’s Office.
II. Standard for Summary Judgment
Summary Judgment is a "drastic remedy" to be granted only on a clear
showing that there is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law. KN Energy, Inc. v. Great Western Sugar
Co., 698 P.2d 769, 776 (Colo. 1985). The movant has the burden of establishing
the absence of triable issues of fact. Churchey v. Adolph Coors Co., 759 P.2d
1336, 1340 (Colo. 1988), and the non-movant "must receive the benefit of
4
all favorable inferences that may be reasonably drawn from the undisputed facts,"
Mancuso v. United Bank of Pueblo, 818 P.2d 732, 736 (Colo. 1991). An order
granting summary judgment is reviewed de novo. Aspen Wilderness Workshop,
Inc. v. Colorado Water Conservation Bd., 901 P.2d 1251, 1256 (Colo. 1995). An
order denying summary judgment is interlocutory in nature and not subject to
review. Manuel v. Fort Collins Newspapers, Inc., 631 P.2d 1114, 1116-17
(Colo . 1981).
Summary judgment is proper only when the pleadings, affidavits,
depositions, or admissions establish that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.
C.R.C.P. 56(c). The moving party has the burden to establish that no genuine issue
of material fact exists, and any doubt should be resolved in favor of the
nonmoving party. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation
Bd., 901 P.2d 1251, 1256 (Colo.1995).
III. Genuine Issues as to Material Facts
Defendants claim, through the factual assertions in their pleadings and
statements and admissions made by the Defendants and Plaintiffs during the
course of the limited discovery conducted in this action, that there is no genuine
issue as to the facts. However, the interpretations and the conclusions presented in
the following facts support the Plaintiffs’ claims, not the Defendants.
1. Defendants claim that “[b]ased on information available to him,
Mesecher believed marijuana was being grown at these residences in violation of
5
Colorado criminal statutes.” (Defendant’s Brief in Support of Motion for
Summary Judgment). However, Mesecher did not check with the Colorado
Department of Health and Environment’s Confidential Medical Marijuana
Registry (“Registry”) to determine if Kaleb Young was a medical marijuana
patient. (Affidavit of Kaleb Young, Para. 1).
2. The Registry is a constitutionally-created database that exists
specifically to allow law enforcement officers to determine if a suspect is
authorized to possess or cultivate medical marijuana before the officer effectuates
an arrest or search and seizure;
3) The state health agency shall create and maintain a confidential registry of patients who have applied for and are entitled to receive a registry identification card according to the criteria set forth in this subsection, effective June 1, 1999. (a) No person shall be permitted to gain access to any information about patients in the state health agency's confidential registry, or any information otherwise maintained by the state health agency about physicians and primary care-givers, except for authorized employees of the state health agency in the course of their official duties and authorized employees of state or local law enforcement agencies which have stopped or arrested a person who claims to be engaged in the medical use of marijuana and in possession of a registry identification card or its functional equivalent, pursuant to paragraph (e) of this subsection (3). Authorized employees of state or local law enforcement agencies shall be granted access to the information contained within the state health agency's confidential registry only for the purpose of verifying that an individual who has presented a registry identification card to a state or local law enforcement official is lawfully in possession of such card. Colo. Consti. Art. XVIII § 14(3)(a).
6
3. The information establishing that Plaintiff was a medical marijuana
patient and caregiver was available to Mesecher before he drafted affidavits in
support of search warrants on September 14, 2010 for properties being rented to
Young at 12669 North County Road 5, Wellington, CO and 5228 East Harmony
Road, Timnath, CO. (Affidavit of Kaleb Young, Para. 2).
4. With the exclusion of the available information from the Registry
showing that Plaintiff was a medical marijuana patient and caregiver, Larimer
County Court Judge Cynthia Hartman found probable cause sufficient to issue
Search Warrants for Young’s County Road 5 and Harmony Road properties on
September 14, 2010. (Affidavit of Pete Mesecher, Para. 6).
5. On September 22, 2010, the search warrants were executed.
(Complaint, Paragraph 8).
6. Upon execution of the search warrants, medical marijuana
documentation was found in Plaintiff’s residence. (Affidavit of Kaleb Young,
Para. 3). Specifically, the following documentation was recovered by Larimer
County Sheriff’s Office agents and placed into evidence;
Photocopy of Medical Marijuana Registry Application Form / KALEB YOUNG Photocopy of Medical Marijuana Registry / KALEB YOUNG Photocopy of Medical Marijuana Registry Application Form / CHRIS THOMPSON Photocopy of Medical Marijuana Registry / CHRIS THOMPSON Photocopy of Colorado Identification Card / CHRISTOPHER THOMPSON Photocopy of Medical Marijuana Registry Application Form / DANIEL GURRERO Photocopy of Medical Marijuana Registry / DANIEL GURRERO Photocopy of Colorado Instruction Permit / DANIEL GURRERO Photocopy of Medical Marijuana Registry Application Form / MICHAEL
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WRIGHT (2 copies) Photocopy of Medical Marijuana Registry / MICHAEL WRIGHT (2 copies) Photocopy of Arizona Driver's License / MICHAEL WRIGHT (2 copies) Photocopy of Colorado Temporary Document Driver's License / MICHAEL WRIGHT (2 copies) Photocopy of Medical Marijuana Registry Application Form / ALFRED BARKER Photocopy of Medical Marijuana Registry / ALFRED BARKER Photocopy of Colorado Driver's License / ALFRED BARKER Photocopy of Medical Marijuana Registry Application Form / DAVID GALLEGOS Photocopy of Medical Marijuana Registry / DAVID GALLEGOS Photocopy of Colorado Driver's License / DAVID GALLEGOS Photocopy of Medical Marijuana Registry Application Form / LORENZO CASIAS Photocopy of Medical Marijuana Registry / LORENZO CASIAS Photocopy of Colorado Identification Card / LORENZO CASIAS Photocopy of Medical Marijuana Registry Application Form / GARY CAMPBELL Photocopy of Medical Marijuana Registry / GARY CAMPBELL Photocopy of Colorado Driver's License / GARY CAMPBELL Photocopy of Medical Marijuana Registry Application Form / LUIS HASSEY Photocopy of Medical Marijuana Registry / LUIS HASSEY Photocopy of Colorado Identification Card / LUIS HASSEY Photocopy of Medical Marijuana Registry Application Form / PAMELA SHAW Photocopy of Medical Marijuana Registry / PAMELA SHAW Photocopy of Colorado Driver's License / PAMELA SHAW Photocopy of Medical Marijuana Registry Application Form / VALERIE LOVATE Photocopy of Medical Marijuana Registry / VALERIE LOVATE Photocopy of Colorado Identification Card / VALERIE LOVATE Photocopy of Medical Marijuana Registry Application Form / ROBERT WHITNEY Photocopy of Medical Marijuana Registry / ROBERT WHITNEY Photocopy of Colorado Driver's License / ROBERT WHITNEY Photocopy of Medical Marijuana Registry Application Form / DAVID COLEMAN Photocopy of Medical Marijuana Registry / DAVID COLEMAN Photocopy of Colorado Driver's License / DAVID COLEMAN Photocopy of Medical Marijuana Registry Application Form / TONI PENSON-PEREZ Photocopy of Medical Marijuana Registry / TONI PENSON-PEREZ Photocopy of Colorado Driver's License / TONI PENSON-PEREZ
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Photocopy of Medical Marijuana Registry Application Form / OPHELIA GALLEGOS Photocopy of Medical Marijuana Registry / OPHELIA GALLEGOS Photocopy of Colorado Driver's License / OPHELIA GALLEGOS
(Plaintiff’s Exhibit 1).
7. After recovering this bulk of medical marijuana documentation,
Larimer County Sheriff’s Office agents cut down all 42 of the medical marijuana
plants; the plants were cut at the base of the stem, leaving the dirt and roots in the
containers. The plants (consisting of the cut off stems and leaves) were placed in
plastic bags and booked into evidence. (Affidavit of Pete Mesecher, Para. 10;
Complaint Paragraph 11).
8. Plaintiff was arrested and booked at the Larimer County Detention
Center. Upon booking, a medical marijuana application was recovered from
Plaintiff’s wallet. (Affidavit of Kaleb Young, Para. 4) After this documentation
was recovered by Mesecher and placed into evidence, Mesecher prepared an
affidavit for warrantless arrest of Young. (Plaintiff’s Exhibit 1).
9. Mesecher was the lead investigator on this case and assisted in
processing the evidence that was collected from 5228 East Harmony Road,
including medical marijuana documents, medical marijuana ingestion devices,
medical marijuana and other documents, and the evidence collected at 12669
North County Road 5, including live medical marijuana plants, grow lights,
ballasts, medical marijuana literature, medical marijuana ingestion devices, and
9
processed medical marijuana. (Affidavit of Kaleb Young; Para. 5; Plaintiff’s
Exhibit 1).
10. Because the marijuana plants were cut at the bases, they wilted and
died within a matter of hours of being in the possession and control of the Larimer
County Sheriff’s Office. (Affidavit of Pete Mesecher, Para. 11).
11. While Karen Mianecki states accurately that Mr. Young returned to
and was present at the County Road 5 property on September 28, 2010, there are
no allegations in Ms. Mianecki’s affidavit that Mr. Young was aware that his
medical marijuana plants were dead and that law enforcement officers with the
Larimer County Sheriff’s Office had failed to maintain his medical marijuana
plants pursuant to their obligations under Colorado Constitution Article XVIII §
14(2)(e). (Affidavit of Karen Mianecki Exhibit). Even if Plaintiff was aware that
his plants were likely dead, he did not have the right to have his medical marijuana
plants returned to him pursuant to Colorado Constitution Article XVIII § 14(2)(e)
until after he was acquitted of criminal charges and his plants were returned to him
in a damaged state. (Affidavit of Kaleb Young, Para. 6).
12. Plaintiff was charged with Cultivation of Marijuana, C.R.S. §18-18-
406(7.5)(c), Possession with Intent to Manufacture or Distribute Marijuana—Less
than Five Pounds, C.R.S. §18-18-406(6)(b)(I), and (III)(A), and Possession of
Marijuana—More than Twelve Ounces, C.R.S. §18-18-406(4)(c). (Complaint,
Paragraph 12).
13. Plaintiff raised the affirmative defense of Medical Use of Marijuana
10
by Persons Suffering from Debilitating Medical Conditions, Colorado Constitution
Article XVIII, Section 14(4)(b). (Complaint, Paragraph 13).
14. On or about April 29, 2011, Plaintiff filed a Motion to Dismiss all
criminal charges based on the immunity provided by Colorado Constitution
Article XVIII, Section 14(4)(b). (Affidavit of Kaleb Young, Para. 7).
15. On June 7, 2011, the Court denied the Motion to Dismiss. The Court
found, “Based upon Article XVIII, Section 14 of the Colorado Constitution,
Colorado statutes and the evidence presented at the hearing, there are a number of
different scenarios under which the prosecution could claim that [Defendant
Young’s] possession and cultivation of marijuana was not legal under the medical
marijuana law. . . .” (Plaintiff’s Exhibit 2). Therefore, even at this stage of the
criminal proceedings, Plaintiff was not able to avow himself of the protections of
Colorado Constitution Article XVIII § 14(2)(e) and have his medical marijuana
plants returned to him and could not have suffered damages as a result of the
seizure and destruction of his medical marijuana plants.
16. A jury trial on the criminal charges against Plaintiff was commenced
on November 21, 2010. During the trial, the 42 marijuana plants seized on
September 22, 2010 were taken from the Sheriff’s Office to the Larimer County
Courthouse and entered into evidence. (Affidavit of Pete Mesecher, Para. 18).
17. On November 23, 2011, Plaintiff was acquitted of all charges based
on his affirmative defense of Medical Use of Marijuana by Persons Suffering from
Debilitating Medical Conditions, Colorado Constitution Article XVIII, Section
11
14(4)(b). (Complaint, Paragraph 13). At this point, Plaintiff could avow himself of
the protections of Colorado Constitution Article XVIII § 14(2)(e) and have his
medical marijuana plants returned to him.
18. On November 25, 2011, the Court ordered property seized by
Larimer County Sheriff’s Office be returned to Young. (Plaintiff’s Exhibit 3).
19. On December 2, 2011, the 42 medical marijuana plants were
returned to Plaintiff by the Larimer County District Court staff. (Affidavit of
Kaleb Young, Para. 6). At this point, Plaintiff suffered significant damages
because the medical marijuana plants that were returned to him were destroyed,
dead, and useless. (Affidavit of Kaleb Young, Para. 6).
20. On June 1, 2012, Plaintiff mailed a Notice of Claim to County
Attorney, George Hass, by certified mail a Notice of Claim pursuant to the
Colorado Governmental Immunity Act (“GIA”). C.R.S. §24-10-109 et seq.
(Plaintiff’s Exhibit 4).
IV. Argument
A. Plaintiff’s Section 1983 Claim Is Not Barred By The Statute Of
Limitations.
The statute of limitations for §1983 claims is Colorado’s two-year personal
injury statute, C.R.S. 13-80-102(1)(i). Blake v. Dickason, 997 F.2d 749, 50-51
(10th Cir. 1993); Arvia v. Black, 722 F.Supp. 644 (D. Colo. 1989). Federal law
governs the determination of when a §1983 action accrues. Fratus v. DeLand, 49
F.3d 673, 675 (10th Cir.1995). A §1983 action “accrues when facts that would
12
support a cause of action are or should be apparent.” Fratus v. DeLand, 49 F.3d
673, 675.
Defendants allege that Plaintiffs action accrued at the latest on September
28, 2010. However, Plaintiff’s attempts to prove his authorization to possess and
cultivate the 42 medical marijuana plants at issue in this case could not have been
fruitful until a jury acquitted him of all charges on November 23, 2011. On or
about April 29, 2011, Plaintiff filed a Motion to Dismiss all criminal charges
based on the immunity provided by Colorado Constitution Article XVIII, Section
14. (Plaintiff’s Exhibit 2). Had the Court granted this motion, Plaintiff would have
immediately been authorized under Colorado Constitution Art. XVIII § 14(2)(e) to
obtain the property seized by the Larimer County Sheriff’s Office in conjunction
with his case;
Marijuana and paraphernalia seized by state or local law enforcement officials from a patient or primary care-giver in connection with the claimed medical use of marijuana shall be returned immediately upon the determination of the district attorney or his or her designee that the patient or primary care-giver is entitled to the protection contained in this section as may be evidenced, for example, by a decision not to prosecute, the dismissal of charges, or acquittal. Colo. Consti. Art. XVIII § (14)(2)(e).
However, On June 7, 2011, the Court denied the Motion to Dismiss.
Therefore, as late as June 7, 2011, Plaintiff was not authorized under the Colorado
Constitution to have his property returned to him and, therefore, the facts that
would support a cause of action were not apparent.
13
Once Plaintiff proceeded to trial and was acquitted of all charges, he was
then authorized under the Colorado Constitution Article XVIII § 14(2)(e) to have
all of his medical marijuana plants returned to him. When Plaintiff received his
dead and useless medical marijuana plants on December 2, 2011, Plaintiff was
comprised of the knowledge that law enforcements officers from the Larimer
County Sheriff’s Office had not complied with the requirements of Colorado
Constitution Article XVIII § 14(2)(e), and that he was entitled to have his medical
marijuana plants returned to him, thereby supporting a cause of action for the loss
of his property. Therefore, the two-year statute of limitations began tolling after
December 2, 2012, and Plaintiff’s § 1983 claim has been brought within the two-
year statute of limitations.
B. Plaintiff States A Section 1983 Claim For Denial Of Due Process In
Violation Of The Fourteenth Amendment.
Plaintiff’s claim for denial of due process violations of the Fourteenth
Amendment is governed by the Fourth Amendment protections against search and
seizure.
Mesecher, through his Affidavit for Search Warrant, stated the facts that he
believed supported criminal activity and grounds to search Young’s County Road
5 property and seize evidence. However, Mesecher failed to check the Registry to
determine if Plaintiff was a medical marijuana patient or caregiver and authorized
to cultivate and possess medical marijuana. The Court found Mesecher’s Affidavit
established probable cause and issued the Search Warrant due to the fact that
14
Mesecher intentionally omitted information that was available to him through the
Registry that would have negated a finding of probable cause.
Mesecher’s affidavit would be devoid of probable cause absent this
omission. The Fourth Amendment to the U.S. Constitution and Colorado
Constitution Article II, Section 7 mandates an evidentiary hearing when there is a
“substantial preliminary showing” that the affiant deliberately or with “reckless
disregard for the truth” included falsehoods, misstatements, or omissions in the
warrant affidavit and these falsities were necessary to the finding of probable
cause. Franks v. Delaware, 438 U.S. 154 (1978).
Therefore, Plaintiff was entitled to notice and a hearing before his medical
marijuana plants were seized and destroyed. Plaintiff was not afforded all the
process he was due under the Fourth Amendment in the criminal action and his §
1983 claim pursuant to the Fourteenth Amendment stands.
C. Plaintiff States A Section 1983 Claim For Deprivation Of Liberty In
Violation Of The Fourteenth Amendment.
In §1983 cases, it is particularly important that the complaint make clear
exactly who is alleged to have done what to whom, to provide each with fair notice
as to the basis of the claims against him or her, as distinguished from collective
allegations against the state. Robbins v. Oklahoma, 519 F.3d 1242, 1249-50 (10th
Cir. 2008).
42 U.S.C. § 1983 states;
15
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress… 42 U.S.C. § 1983.
Individuals are protected from loss of liberty without due process of law
under the Fourteenth Amendment to the United States Constitution and Colorado
Constitution Article II § 25, and it is difficult to characterize an affected interest as
a "liberty" or "property" interest. State By and Through Colorado State Claims Bd.
of Div. of Risk Management v. DeFoor, 824 P.2d 783, 794 (Colo. 1992)(Chief
Justice Rovira specially concurring); See also Morgan v. Mansfield, 569 F.Supp.
710, 713 (D.Colo.1983). The Supreme Court has held that the term "liberty"
should be granted broad meaning and that it "denotes not merely freedom from
bodily restraint but also the right of the individual to contract, to engage in any of
the common occupations of life, to acquire useful knowledge, to marry, establish a
home and bring up children, to worship God according to the dictates of his own
conscience, and generally to enjoy those privileges long recognized ... as essential
to the orderly pursuit of happiness by free men." Id.; quoting Board of Regents of
State Colleges v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 2706-07, 33 L.Ed.2d 548
(1972) (citation omitted).
16
Plaintiff has suffered a deprivation of his liberty interests due to
Defendants’ destruction of his medical marijuana plants because the destruction of
these plants has deprived Plaintiff of his freedom to remain free from bodily harm
stemming from the symptoms of his debilitating medical conditions for which he
used the medical marijuana he was cultivating. See Daniels v. Williams, 474 U.S.
327, 341, 106 S.Ct. 677, 679, 88 L.Ed.2d 662 (1986). Therefore, Plaintiff suffered
a deprivation of his liberty in violation of the Fourteenth Amendment to the
United States Constitution and Colorado Constitution Article II § 25.
D. Plaintiff States A Section 1983 Claim For A Taking In Violation Of
The Fifth Amendment and Colorado Constitution Art. II Section 15.
The Fifth Amendment of the United States Constitution and Colorado
Constitution Article II § 15 provides that private property shall not be taken or
damaged, for public or private use, without just compensation. Plaintiff’s medical
marijuana plants were private property seized under the Fourth Amendment as
evidence of a crime to be used in a public criminal proceeding.
It is well established that the accused in a criminal case has the right to a
public trial. Anderson v. People, 490 P.2d 47, 48, 176 Colo. 224, 226 (Colo.
1971); See U.S. Const. Amend. VI; Colo.Const. Art. II, §§ 16, 25; Thompson v.
People, 156 Colo. 416, 399 P.2d 776 (1965). The Due Process Clause requires the
prosecution to prove beyond a reasonable doubt all of the elements included in the
definition of the offense of which the defendant is charged. Patterson v. New York,
432 U.S. 197, 210, 97 S.Ct. 2319 (1977). Plaintiff’s medical marijuana plants were
17
seized in order to be used by the prosecution, on behalf of the People of the State
of Colorado, to be presented in a public trial in order to prove that Plaintiff
violated the Uniform Controlled Substances Act of 1992 (“USCA”), specifically
C.R.S. § 18-18-406.
The Colorado State legislature enacted the USCA because “regulation of
controlled substances in this state is important and necessary for the preservation
of public safety and public health.” C.R.S. § 18-18-401(1)(a). Therefore,
Plaintiff’s medical marijuana plants were seized to preserve public safety and
public health. Then, Plaintiff’s medical marijuana plants were publically presented
during his trial and used for the public purpose of prosecuting Plaintiff on behalf
of the People of the State of Colorado, otherwise known as the public. Plaintiff’s
medical marijuana plants were clearly taken for public use and Plaintiff has
received no compensation. Therefore, Plaintiff suffered a violation of his Fifth
Amendment right guaranteeing that his private property would not be taken for
public use without just compensation, as well as his rights under Colorado
Constitution Art. II § 15, which makes no distinction between public and private
use of Plaintiff’s property.
E. Plaintiff’s Section 1983 Claims Against Defendant Mesecher In His
Individual Capacity Are Not Barred For Lack Of Personal Participation.
The personal involvement of one allegedly denying constitutional rights
under color of state law is an essential element of a civil rights claim against him.
18
Bennett v. Passic, 545 F.2d 1260, 1262 (10th Cir. 1994), citing Battle v. Lawson,
352 F. Supp. 156 (W.D. Okl. 1972).
Defendant Mesecher orchestrated every aspect of the investigation against
Plaintiff, including but not limited to, the search and seizure of Plaintiff’s medical
marijuana plants. Specifically, Defendant Mesecher;
1. interviewed a citizen informant who lived in the area of 12669 North County Road 5 in Wellington, Colorado, regarding suspicious activity that was going on at 12669 North County Road 5; 2. observed the residence and gray shop on the property of 12669 North County Road 5 from the public roadway and neighboring properties; 3. talked to Alex Otero who is the owner of the property at 12669 North County Road 5; 4. conducted surveillance at 5228 East Harmony Road in Timnath, Colorado; 5. contacted Dispatch for the Colorado State Patrol and requested to have Plaintiff’s pickup stopped; 6. went to 12669 North County Road 5 and attempted to contact and identify Plaintiff; 7. contacted an employee of Poudre Valley REA to get the utility records for 12669 North County Road 5 in Wellington, Colorado; 8. conducted a computer check via the Internet of the Larimer County Assessor property information for the property tax year 2010 for Plaintiff’s property; 9. contacted a representative of First Bank of Wheat Ridge to see if they had an account name of Dry Ground LLC, Plaintiff’s company;
19
10. requested information from the Department of Labor for a work history for the wages reported by Plaintiff; 11. met with County Court Judge Cynthia Hartman North County Road 5 and 5228 East Hannony Road. Both of the warrants were signed by Judge Hartman. Defendant Mesecher made copies of the warrants and attached them to his report; 12. instructed members of the Larimer County Sheriffs Office executed search warrants at 12669 North County Road 5 in Wellington, Colorado, and 5228 East Harmony Road in Timnath, Colorado; 13. responded to the Larimer County Detention Center to fill out an Affidavit in Support of Warrantless Arrest and booking Information on Plaintiff; 14. assisted in processing evidence that was collected from 12669 North County Road 5 in Wellington, Colorado, and 5228 East Harmony Road in Timnath, Colorado, including Plaintiff’s medical marijuana plants.
(Plaintiff’s Exhibit 1). Defendant Mesecher was intimately involved in every aspect of Plaintiff’s
case from the initial contact with an anonymous informant to serving as advisory
witness for the prosecution during Plaintiff’s trial. The only action Mesecher failed
to perform was to check the Registry to determine whether Plaintiff was a
registered medical marijuana patient and caregiver. Mesecher lead the
investigation against Plaintiff and was thereby responsible for the destruction of
Plaintiff’s medical marijuana plants during the search and seizure he coordinated.
Therefore, Plaintiff’s § 1983 claims against Defendant Mesecher in his individual
capacity are not barred for lack of personal participation.
20
F. Plaintiff’s Section 1983 Claims Against Defendant Mesecher In His
Individual Capacity Are Not Barred By Qualified Immunity.
In an action under §1983, a plaintiff must first establish an individual
defendant violated a federal law or the United States Constitution. Even if a
violation is established, a defendant may be entitled to qualified immunity.
Individual defendants are entitled to qualified immunity unless it is demonstrated
that their alleged conduct violates clearly established constitutional rights of which
a reasonable person in their positions would have known.” Murrell v. Sch. Dist.
No. 1, Denver, Colo., 186 F.3d 1238,1251 (10th Cir. 1999). The inquiry is an
objective one, focused on “whether the officers’ actions [were] objectively
reasonable in light of the facts and circumstances confronting them, without regard
to underlying intent or motivation.” Weigel v. Broad, 544 F.3d 1143, 1151 (10th
Cir. 2008).
Defendant Mesecher’s actions were not objectively reasonable given that he
checked nearly every private and public agency’s records regarding Plaintiff
except for the Colorado Department of Public Health and Environment’s Medical
Marijuana Registry. Had Defendant Mesecher performed this simple action, he
could have easily verified that Plaintiff was authorized to cultivate the amount of
medical marijuana that he was cultivating on September 22, 2010. Furthermore, a
wealth of medical marijuana documentation was present on Plaintiff and at his
properties, thereby informing officers, including Mesecher, than Plaintiff was
21
cultivating marijuana for medical use under Colorado Constitution Art. XVIII §
14.
Plaintiff satisfies the initial burden of showing that a defendant has violated
a clearly established Colorado State law, Colorado Constitution Art. II § 15 and
Colorado Constitution Art. XVIII § 14(2)(e). Furthermore, Defendant Mesecher
cannot show that his actions were objectively reasonable in light of his extensive
experience with Colorado’s medical marijuana law and the information he
possessed at the time of his actions. Albright v. Rodriguez, 51 F.3d 1531, 1534-35
(10th Cir. l995); Salmon v. Schwarz, 948 F.2d 1131, 1136 (10th Cir. l991).
Therefore, Plaintiff’s § 1983 claims against Defendant Mesecher in his individual
capacity are not barred by qualified immunity.1
G. Plaintiff States A Section 1983 “Entity” Claim Against The Sheriff’s
Office And Against Justin Smith And Pete Mesecher In Their Official
Capacities.
The government as an entity is responsible under §1983 when the execution
of a government’s policy or custom inflicts the injury. Monell v. Department of
Social Services of City of New York, 436 U.S. 658, 694-695, 98 S.Ct. 2018 (1978).
The Larimer County Sheriff’s Office’s policy was to cut down marijuana plants,
even if there was evidence that the plants were for medical use pursuant to
Colorado Constitution Article XVIII § 14.
1 For further argument on why the Governmental Immunity Act is inapplicable, see Section J of the Argument section of this Response to Defendants’ Motion for Summary Judgment.
22
To sustain an entity or official capacity liability claim for §1983 violations,
the plaintiff must show: (1) the existence of a municipal custom or policy; and (2)
a direct causal link between the custom or policy and the violation alleged. Anaya
v. Crossroads Managed Care Systems, Inc., 195 F.3d 584, 592 (10th Cir. 1999)
(quoting Hollingsworth v. Hill, 110 F.3d 733, 742 (10th Cir. 1997)).
Defendant Mesecher states that he did not instruct officers to cut down
Plaintiff’s medical marijuana plants. (Pete Mesecher Affidavit, Para. 8). However,
officers still destroyed Plaintiff’s medical marijuana plants, regardless of where
the cut was made on the plant. The officers were acting pursuant to Larimer
County Sheriff’s Office policies and procedures when they executed the search
warrants on Plaintiff’s properties. Officers with the Larimer County Sheriff’s
Office routinely destroy marijuana plants that they think are illegal and non-
medical. (Affidavit of Kaleb Young, Para 6). While operating under these policies
and procedures, officers located medical marijuana paperwork and also cut down
the medical marijuana plants they found in Plaintiff’s residence. The destruction of
the 42 medical marijuana plants in violation of the Colorado Constitution was the
result of the Larimer County Sheriff’s Office’s custom, policy, or procedure of
cutting down marijuana plants that they think are illegal. Pete Mesecher did not
believe that the marijuana in this case was medical. (Affidavit of Pete Mesecher,
Para. 4). Therefore, pursuant to Larimer County Sheriff’s Office’s custom and/or
policy, officers destroyed Plaintiff’s medical marijuana plants. This policy directly
caused the constitutional violations alleged by Plaintiff.
23
H. There Is A Private Right Of Action For Violation Of Colorado
Constitution Article XVIII, Section 14(2)(e).
Defendants argue that the critical question in whether the Colorado
Constitution Article XVIII § 14 implicitly creates a private right of action is
whether the drafters of the law intended such a result.
Colorado Constitution Article XVIII § 14 is a constitutional amendment
that was approved by Colorado voters in November of 2000 and enacted in
January 2001. Defendants’ references to the Medical Marijuana Code and case law
interpreting private rights of action based on statutory violations are misplaced.
Colorado Constitution Article II § 15 does not expressly create a private
right of action. However, the purpose of inserting the word "damaged" into this
section was to add an additional right of action. City of Pueblo v. Strait, 20 Colo.
13, 19, 36 P. 789, 791 (1894). Likewise, the addition of the word “destroyed” to
Colorado Constitution Article XVIII § 14(2)(e) creates an additional right of
action. Colo. Consti. Art. XVIII § 14(2)(e).
The Medical Marijuana Code expressly does not apply to patients and
caregivers acting pursuant to Colorado Constitution Article XVIII § 14. C.R.S. §
12-43.3-103(2)(e); 12-43.3-104(8). Plaintiff was a patient and caregiver acting
pursuant to Colorado Constitution Article XVIII § 14 and not a licensee pursuant
to the Medical Marijuana Code. Therefore, the Medical Marijuana Code is
inapplicable to Plaintiff and its failure to add an express remedy for the seizure of
medical marijuana from a state-licensed medical marijuana center or optional
24
premises cultivation facility, as well as the Colorado Court of Appeals decision in
Giuliano v. Jefferson County, --- P.3d ---, 2012 WL 5360940 (Colo. App.), is
irrelevant to whether Plaintiff, an individual medical marijuana patient and
caregiver and not a medical marijuana center or optional premises cultivation
facility licensee, may recover against a government agency that intentionally
destroyed his medical marijuana plants in derogation of Colorado Constitution
Article XVIII § 14(2)(e) and Colorado Constitution Article § 15.
I. Plaintiff’s State Law Claim Under The Colorado Constitution Article
XVIII, Section 14(2)(e) Is Not Barred By The Statute Of Limitations.
C.R.S. 13-80-103 provides,
The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, shall be commenced within one year after the cause of action accrues, and not thereafter: *** (c) All actions against sheriffs, coroners. police officers, firefighters, national guardsmen, or any other law enforcement authority. . . .” C.R.S. § 13-80-103(1)(c).
The term “sheriff” is used in its generic sense and includes the whole class
of officers performing the duties of the office of sheriff and includes deputy
sheriffs. Bailey v. Clausen, 192 Colo, 297, 557 P.2d 1207 (1976).
Defendants allege that Plaintiffs action accrued at the latest on September
28, 2010. However, Plaintiff’s attempts to prove his authorization to possess and
cultivate the 42 medical marijuana plants at issue in this case could not have been
25
fruitful until a jury acquitted him of all charges and he was presented with his
destroyed property on December 2, 2011.
Plaintiff was required to proceed to trial and be acquitted of all charges
before he was able to be authorized under the Colorado Constitution Article XVIII
§ 14(2)(e) to have all of his medical marijuana plants returned to him. It was not
until Plaintiff received his dead and useless medical marijuana plants on
December 2, 2011 that Plaintiff was comprised of the knowledge that law
enforcement officers from the Larimer County Sheriff’s Office had not complied
with the requirements of Colorado Constitution Article XVIII § 14(2)(e), thereby
supporting a cause of action for the destruction of his property. Therefore,
Plaintiff’s claim under the Colorado Constitution Article XVIII, Section 14(2)(e)
accrued on December 2, 2011.
Plaintiff was required by C.R.S. § 13-80-103 to file his claim under the
Colorado Constitution Article XVIII, Section 14(2)(e) within 365 days from
December 2, 2011. 365 days after December 2, 2011 is Saturday December 1,
2012. Pursuant to C.R.C.P. 6(a);
In computing any period of time prescribed or allowed by these rules, the day of the act, event, or default from which the designated period of time begins to run shall not be included. Thereafter, every day shall be counted, including holidays, Saturdays or Sundays. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. The "next day" is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.
26
C.R.C.P. 6(a). Since, in this case, the cutoff date falls on a Saturday, the Complaint was to
be filed by Monday December 3, 2012. Plaintiff filed his Complaint on December
3, 2012. Therefore, Plaintiff’s claim under the Colorado Constitution Article
XVIII, Section 14(2)(e) has been brought within the one-year statute of
limitations.
J. Plaintiff’s State Law Claim Under The Colorado Constitution Article
Xviii, Section 14(2)(e) Is Not Barred By The Colorado Governmental
Immunity Act.
There is a private right of action for enforcement of Article XVIII, Section
14(2)(e). However, should the Court determine that Plaintiff’s claim could lie in
tort, the GIA still does not apply to Plaintiff’s claims.
The GIA, on its face, appears to preclude any claim that "lies in tort or
could lie in tort" from being pursued against a public entity unless such claim is
within certain specified exceptions. However, other constitutional and statutory
provisions also authorize legal actions against either the state or one or more
political subdivisions for injuries sustained under circumstances not described in §
24-10-106(1) of the GIA. The most notable other instance in which the state has
authorized a suit for damages is that in which private property is taken or damaged
by the state or a political subdivision and compensation is required to be paid
under Colo. Const. Art. II, § 15. Conners v. City of Colorado Springs, 962 P.2d
294, 296 (Colo.App. 1997); citing Hayutin v. Colorado State Department of
27
Highways, 175 Colo. 83, 485 P.2d 896 (1971), cert. denied, 404 U.S. 991, 92 S.Ct.
533, 30 L.Ed.2d 542 (1971). Plaintiff’s claim under Colorado Constitution Art.
XVIII § 14(2)(e) is more akin to a replevin claim rather than a claim for
conversion or negligence.
In the case of Desert Truck Sales v. City and County of Denver, Plaintiff
sued under a theory of replevin after a Denver police officer impounded its 1976
Rolls Royce automobile. The trial court determined that, because the replevin
action sounded in tort, GIA was applicable and, because Plaintiff had not given
proper notice as required by § 24-10-109, dismissed the complaint. Desert Truck
Sales, Inc. v. City and County of Denver, 821 P.2d 860, 861 (Colo.App. 1991).
The Court of Appeals disagreed and found that;
Plaintiff's complaint alleged that its personal property had been wrongfully confiscated and detained. Therefore, it was an action based on conversion. See Glenn Arms Associates v. Century Mortgage & Investment Corp., 680 P.2d 1315 (Colo.App.1984), which is an action in tort. See Ferguson v. Turner, 69 Colo. 504, 194 P. 1103 (1921); See also Montgomery Ward & Co. v. Andrews, 736 P.2d 40 (Colo.App.1987). Thus, plaintiff's claim would appear to be within the scope of the Act. However, certain causes of action even though they lie, or could lie, in tort are excluded from the coverage of the Governmental Immunity Act. See Jorgenson v. City of Aurora, 767 P.2d 756 (Colo.App.1988); Jones v. Northeast Durango Water District, 622 P.2d 92 (Colo.App.1980); Srb v. Board of County Commissioners, 43 Colo.App. 14, 601 P.2d 1082 (1979). In Srb v. Board of County Commissioners, supra, we held that a claim for property damage under Colo. Const. Art. II, § 15, which prohibits the government from taking private property for public or private use without just compensation, is not within the coverage of the Act. We noted that this constitutional clause creates an exception
28
to the doctrine of governmental immunity, see Board of County Commissioners v. Adler, 69 Colo. 290, 194 P. 621 (1920), and, since the purpose of the constitutional provision is to provide a remedy for injury to private property inflicted by the government, it is remedial in nature and must be liberally construed. Accordingly, we concluded that, since the claim at issue there arose under the constitutional just compensation clause, it was not subject to the provisions of the Governmental Immunity Act. Desert Truck Sales, Inc., 821 P.2d at 861-62.
Similarly to Desert Truck Sales and Srb v. Board of County
Commissioners, Plaintiff’s claims are for property damage under Colo. Const. Art.
II, § 15 and Colorado Constitution Art. XVIII § 14(2)(e). These constitutional
provisions prohibit the government from taking or damaging private property for
public or private use without just compensation. Furthermore, C.R.S. § 24-10-109
does not apply to claims for civil rights violations. See Mucci v. Falcon Sch. Dist.,
655 P.2d 422 (Colo. App. 1982); Barrack v. City of Lafayette, 829 P.2d 424 (Colo.
App. 1991); Conners v. City of Colo. Springs, 962 P.2d 294 (Colo. App. 1997),
aff'd, 993 P.2d 1167 (Colo. 2000).
Therefore, Plaintiff’s claims are not within the coverage of GIA and are not
subject to the notice requirements of C.R.S. § 24-10-109.
PRAYER FOR RELIEF Wherefore, Plaintiffs respectfully request that the Court deny Defendants’
Motion for Summary Judgment, and for all just and proper relief.
Dated this 3rd day of April, 2013 Respectfully Submitted,
29
/s/ Travis B. Simpson Travis B. Simpson Robert J. Corry, Jr.
30
CERTIFICATE OF SERVICE The undersigned hereby certifies that on April 3, 2013, a true and correct copy of the foregoing RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT was filed and served via ICCES to the following: George H. Hass Jeannine S. Haag William G. Ressue 224 Canyon Ave. Suite 200 Post Office Box 1606 Fort Collins, Colorado 80522 Tel: (970) 498-7450 [email protected] [email protected] [email protected] /s/ Travis B. Simpson In accordance with C.R.C.P. 121 § 1-26(9), a printed copy of this document with original signatures is being maintained by the filing party and will be made available for inspection by other parties or the Court upon request.