SAN FRANCISCO (CN) - A cannabis activist could get a second crack at his lawsuit claiming a Northern California city conspired to snuff out a popular marijuana celebration, a Ninth Circuit panel suggested Tuesday.
"He sought to amend the complaint and was denied," U.S. Circuit Judge Mary Murguia said during a hearing Tuesday morning. "Why should he not be allowed to amend the complaint?"
Murguia was referring to Gregory Allen's lawsuit claiming the city of Arcata’s police and government officials hatched a secret, five-year plan to deter massive crowds of marijuana smokers and activists from celebrating "420" – a longtime code for smoking weed – in the city's Redwood Park on April 20 each year. Allen alleged the city started cracking down on the annual 420 celebration after a 2009 A&E documentary called "Pot City USA" cast the city's cannabis culture in a critical light.
In July 2015, U.S. District Judge James Donato dismissed the suit with prejudice, finding Allen suffered no concrete injury within the two-year statute of limitations and that no amended complaint could cure that defect.
Nicholas Kloeppel, a private attorney representing Arcata, said Donato made the right call because Allen only suffered an alleged injury in 2010 when police barred him and others from entering the grassy area of the park. At that time, celebrants were diverted to a nearby forest where they faced "increased surveillance and enforcement," according to Allen's complaint.
"He states in his pleading that he would not go to the later events because of what happened in 2010," Kloeppel said.
But circuit judges countered that was not the only allegation cited in Allen's brief.
"Didn't he also allege it was the town's repetitive closure of the park that caused him not to go?" asked visiting panel member Cynthia Rufe, a U.S. district judge from the Eastern District of Pennsylvania.
Over the next four years, 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,” Allen said in his complaint.
But Kloeppel contended Allen never claimed those actions deterred him from attending the events, and for him to now change his story would be "inconsistent."
U.S. Circuit Judge William Canby, Jr. disagreed, saying amendments do not always make a plaintiff's complaint inconsistent.
"Can the complaint reasonably be read to say, 'I'm not going there because of what happened in 2010 and no other reason,' or to say 'It's a reason why I'm not going'?" Canby asked.
Kloeppel argued it's not enough for Allen to say he was aware of the city's actions to allegedly block future 420 celebrations at the park. He must specify how he was made aware of them and whether they influenced his decision not to attend the later events, the city's attorney said.
Allen's attorney, Peter Martin, said his client could not have filed his lawsuit back in 2010 because he did not find out until later that the police chief, city manager and city councilors had devised a secret plan behind closed doors to stop the annual 420 celebration.
For thousands who attended the event in the past to protest laws prohibiting marijuana, Martin said the city's actions threaten "one of our most protected freedoms under the First Amendment - the right of the citizens to associate and seek redress of grievances in a public square."
"We believe the essence of the injury is not simply not being able to use the park, but not being able to use the park because the city chose to close the park because it did not like the viewpoints being expressed by the people using the park," Martin argued.
Last year, only a few dozen people showed up to the 420 celebration at Redwood Park, even though the city established a Medical Marijuana Innovation Zone to encourage new cannabis businesses there, according to the Eureka Times-Standard.
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.
Kloeppel is with Mitchell Brisso Delaney & Vrieze in Eureka.
Martin is in private practice in the same city.
Follow @NicholasIovino
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