PORTLAND, Ore. (CN) – There was smoke but little fire in a 9th Circuit hearing on an Oregon sheriff’s intervention to prosecute medical marijuana growers. Attorneys argued whether the Douglas County sheriff had qualified immunity in a First Amendment retaliation case.
Five medical marijuana cardholders sued Douglas County and Sheriff Chris Brown in 2007 after criminal charges were brought against growers Delores and John Nelson. Authorities seized more than 117 lbs. of marijuana at two properties in Myrtle Creek.
Douglas County is in Southwestern Oregon. Its seat is in Roseburg.
The plaintiffs said Sheriff Brown retaliated against them because they petitioned Douglas County to return the legal marijuana that was taken. They claimed Brown persuaded federal authorities to get involved in the case, in violation of their First Amendment right to petition the government to return property.
U.S. District Judge Michael Hogan, in Eugene, found for Douglas County in August 2010, finding plaintiffs’ evidence of retaliation speculative, and that Brown was entitled to qualified immunity.
The pot growers appealed.
Plaintiffs’ attorney Marianne Dugan told a three-judge panel of the 9th Circuit that there was circumstantial evidence for her clients’ retaliation claim, and that the way the sheriff got federal authorities involved was “simply an anomaly.”
The Oregon Medical Marijuana Act requires prosecutors to return marijuana if authorities make a “decision not to prosecute.”
The circuit panel appeared most interested in the issue of qualified immunity.
“If there’s no qualified immunity, the plaintiffs lose,” Judge Milan Smith said.
Dugan said that Sheriff Brown had “animus” toward Oregon’s medical marijuana law, which supports the retaliation claim.
“On the day he intervened in the motion, he stated to a newspaper that he did not believe that there was any medical value in marijuana,” Dugan said
“The government just issued an FDA ruling that said the same thing,” Judge Smith retorted. “Is that an unreasonable opinion under the circumstances?”
Dugan said the sheriff was entitled to his opinion, but his view on the law, along with the timing of Brown’s decision to contact federal authorities, supported a retaliation theory.
Dugan noted that the recent Oregon Supreme Court case, Emerald Steel Fabricators Inc. v. Bureau of Labor and Industries, “is not a blanket statement that the Oregon Medical Marijuana Act is pre-empted [by federal law].”
That decision held that an employer does not have a duty to accommodate medical marijuana use by employees.
Dugan said the district court should not have thrown out the plaintiffs’ circumstantial evidence because Emerald Steel related to employment. She disagreed with the finding that a constitutional violation would be contrary to public policy.
“If the sheriffs do not like the OMMA, they are certainly free to lobby for its change, and the Legislature is free to amend or revoke OMMA. But they have not done so,” Dugan said.
Then attorney Stan LeGore spoke, representing Douglas County and Sheriff Brown.
LeGore said the district court’s decision was “valid, and supported by the record.” Judge Smith interrupted him.
“If there weren’t a qualified immunity issue here, I think they’d probably make a pretty good case that this case is not pre-empted by federal law,” Smith said. “There’s a lot of smoke here [and] there very well may be fire.”
The judge said he primarily was concerned with the immunity issue. LeGore responded that immunity related to the particular circumstances of the case.
“Let’s be candid here,” Judge Smith shot back. “This is cute, on the part of the sheriff. The sheriff knew perfectly well what he was doing. He wasn’t just doing this for fun; this was his way of dealing with it.”
LeGore disagreed, saying there was a DEA investigation of the marijuana growers before Brown contacted federal agencies.
“To me, the whole thing comes down to the qualified immunity,” Judge Smith reiterated.
LeGore said immunity depends on whether the sheriff “could have reasonably misapprehended the law at the time.”
The Oregon Supreme Court is still struggling with pre-emption issues regarding the medical marijuana law, LeGore said, so it is difficult to prove whether Brown knowingly violated the state constitution.
The real issue, Judge Smith said, is whether Brown should have known that his delivery of the marijuana to federal agencies violated the plaintiffs’ rights.
The plaintiffs seek discovery to determine who’s telling the truth, which cannot happen unless the qualified immunity issue is resolved.
Judge Harry Pregerson asked if the sheriff acted in good faith.
LeGore responded that he did not believe that good faith was an element of qualified immunity.
During rebuttal, Dugan responded to Pregerson’s question about qualified immunity, saying that an officer has to both “reasonably believe that the law is a certain way, and there has to be an objective basis for that.”
“Whether the law is clear or not about marijuana [is] not the point,” Dugan said. “The jury would be entitled to find that the officers involved took steps to retaliate because of the filing of the motion to return the marijuana.”
Judge Smith said the issue of retaliation exists only if a constitutional violation has been established, and that cannot be determined unless qualified immunity is determined.
“If your client’s basic position is undermined by the fact that nobody knows the answer to the question, whether or not they are entitled to get it back, then you have a problem, don’t you?” Judge Smith said.
“I probably buy much of your case if I get past the qualified immunity.”
The right to have marijuana is not at issue, Dugan said. The issue is whether the plaintiffs had the right to petition the government to have it returned.