Ninth Circuit Revives Pot Party Lawsuit

SAN FRANCISCO (CN) – A cannabis activist will get a second chance to press his lawsuit claiming a Northern California city conspired to snuff out a popular marijuana celebration, a Ninth Circuit panel ruled Friday.

Cannabis activist and attorney Gregory Allen sued the city of Arcata in October 2014, claiming its police and government officials hatched a secret, five-year plan to deter marijuana smokers and activists from celebrating “420” – a longtime code for smoking weed – in the city’s Redwood Park on April 20 each year. According to Allen, the city started cracking down on the annual event after a 2009 A&E documentary cast the city’s cannabis culture in a critical light.

“If you can’t express yourself on the parks and streets of this country, you’re in a police state,” Allen’s attorney, Peter Martin, said in an interview. “It’s a fundamental right that we’ve enjoyed since the founding of the republic.”

In a five-page opinion, three circuit judges found that U.S. District Judge James Donato properly dismissed the complaint for lack of standing in July 2015, but that Allen should have been allowed to amend his complaint.

Donato ruled Allen’s claims were barred by the two-year statute of limitations because he only alleged a concrete injury in 2010 when he was denied entry to the park.

But Allen claims the city’s continued efforts to suppress the annual gathering also discouraged him from attending in later years.

After 2010, the city deployed a series of “excuses” to close the park, such as scheduling a “tree-limbing operation” and dumping “2,000 pounds of smelly fish-emulsion fertilizer in the park to deter the 420 celebrants,” according to Allen’s complaint.

“Allen may be able to establish that he suffered an injury-in-fact that is not time-barred by sufficiently alleging that he was deterred from attending 420 celebrations in 2013 and 2014 in response to defendants’ conduct that closed Redwood Park to 420 celebrants these years,” the Ninth Circuit judges wrote in their opinion.

Martin said his client is pleased with the ruling.

“I think the court accepted our argument that there was a self-censorship injury in 2014 and 2015,” Martin said, referring to Allen being discouraged from attending the event.

Arcata City Manager Karen Diemer said the city is pleased that the Ninth Circuit upheld Donato’s dismissal ruling, adding that any amended complaint will also likely be dismissed.

“We believe there are additional grounds or bases to dismiss this case in its entirety, and we will address any specific complaint if an amended complaint is filed,” Diemer said.

Martin said the city still tries to suppress the annual event, which attracts far fewer celebrants now compared to the 420 events held prior to 2010. On April 20 this year, the city locked a gate at Redwood Park to discourage people from entering, Martin said.

“I think if the city laid off and was required to be hospitable to the event, it would come back,” Martin said.

But Diemer said the park was open on April 20 this year and that there has been “no effort” to stop the celebration since she became city manager in 2014. Though she was not aware of any gates being closed, Diemer said park gates are sometimes closed on weekends or other days “depending on what’s happening in the park.”

In 2015, Diemer said she worked with a group to allow for a permitted event at the park on April 20.

“We worked through a permitted event process,” Diemer said. “We opened up an area of the park for them to hold a free speech event, and they did. That was in 2015. In 2016 and 2017, we didn’t receive any request for a permitted activity.”

Arcata, home to Humboldt State University, is eight miles north of Eureka, California, the seat of Humboldt County. Humboldt is one of three counties that make up the Emerald Triangle, a tri-county area in Northern California that holds title as the largest cannabis-producing region in the United States.

The Ninth Circuit panel that issued the opinion on Friday included U.S. Circuit Judges Mary Murguia and William Canby Jr., joined by visiting panel member U.S. District Judge Cynthia Rufe from the Eastern District of Pennsylvania.

The city of Arcata is represented by Nicholas Kloeppel with Mitchell Brisso Delaney & Vrieze in Eureka.

Martin is in private practice in the same city.

Follow @NicholasIovino

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