Four U.S. District Court judges in California dismiss marijuana dispensaries suits

Judges in each of the state’s four federal judicial districts have turned down suits filed on behalf of medical marijuana dispensaries in reaction to a federal crackdown on California’s marijuana industry.

Earlier this month, the U.S. District Court for the Northern District of California became the latest of the courts to turn down one of the cases.

In October and November 2011, lawsuits were filed in each of the four California federal judicial districts seeking to halt federal enforcement of the Controlled Substances Act against marijuana dispensaries on a variety of grounds, according to the U.S. Attorney’s Office.

The suits claimed that the federal government could not take any legal action against dispensaries because such action was a violation of the Ninth and Tenth Amendments, the Equal Protection Clause and the Commerce Clause.

Following separate proceedings in each district, four different district court judges have issued orders dismissing the cases.

“If there were persons who doubted that federal law clearly prohibits the cultivation and sale of marijuana, these decisions by four separate federal judges dismissing four lawsuits should put that doubt to rest,” said U.S. Attorney for the Eastern District of California Benjamin Wagner. “Our responsibility as U.S. Attorneys is to enforce the Controlled Substances Act.”

In the Eastern District of California, a lawsuit filed by the Sacramento Nonprofit Collective doing business as El Camino Wellness Center, a mutual benefit nonprofit collective, and Ryan Landers, an individual, was dismissed by U.S. District Court Judge Garland Burrell Jr. on Feb. 28.

In the Southern District of California, a lawsuit filed by Alternative Community Health Care Cooperative Inc. was dismissed without leave to amend on March 5 by U.S. District Court Judge Dana Sabraw.

In the Central District of California, U.S. District Court Judge Dolly Gee dismissed a lawsuit filed by the Conejo Wellness Center Cooperative Inc. et al. on April 17.

Judge Gee dismissed the case without prejudice for lack of subject matter jurisdiction and denied the plaintiffs leave to file a second amended complaint.

In the Northern District of California, Marin Alliance for Medical Marijuana et al. v. Holder  – a lawsuit filed on behalf of three marijuana dispensaries, a landlord whose property was the site of one of the marijuana storefronts, and one marijuana dispensary customer – was dismissed on July 11 by U.S. District Court Judge Saundra Armstrong.

Judge Armstrong denied as moot the motion for a temporary restraining order and also denied the plaintiffs’ request for a preliminary injunction.

Earlier this week, marijuana advocacy groups California NORML and Americans for Safe Access organized a protest in Oakland against the federal crackdown during President Barack Obama’s visit.

The groups allege that the Obama administration has now closed more dispensaries than all of its predecessors combined, and expended millions to go after dispensaries compliant with state laws.

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Written by: Lake County News reports

Published: 27 July 2012

Judge hears sheriff’s case against Board of Supervisors over legal counsel; decision pending

LAKEPORT, Calif. – A visiting judge is expected to decide within the next three weeks whether the sheriff is entitled to have the county pay for legal counsel to advise him relating to an investigation into his credibility.

Visiting Mendocino County Judge Richard Henderson presided over an hour-long hearing in the matter, filed by Sheriff Frank Rivero against the Lake County Board of Supervisors, on Friday afternoon in Lake County Superior Court Department 3.

In March, the Board of Supervisors voted against hiring Rivero an outside attorney, which Rivero argued he was entitled to under California government code.

Later that month, Rivero filed a writ against the board seeking to force the county to pay for his legal representation. He’s also seeking an unspecified amount of legal costs.

Rivero’s request for legal representation is in response to District Attorney Don Anderson’s investigation into allegations that Rivero had lied during an investigation into a February 2008 incident in which he shot at a man with pepper spray while working as a sheriff’s deputy.

According to documents Lake County News received through a Public Records Act request, Anderson is considering giving Rivero a “Brady” letter, which would establish that he has credibility issues and could keep him off the stand in criminal cases.

Under case law that developed as a result of the 1963 U.S. Supreme Court case Brady v. Maryland, a prosecutor must divulge all potentially exculpatory evidence to defendants in criminal cases. That includes information that could impugn the credibility of witnesses, including law enforcement officers.

Because of that requirement, and Rivero’s involvement in a criminal case regarding an alleged gang fight involving Hells Angels in June 2011, Anderson must make a final decision on Rivero’s Brady matter.

As a result of Anderson’s pending decision, Rivero went to the board, asserting that under Government Code Section 31000.6 the Board of Supervisors is statutorily obligated to provide him an attorney to advise him in the matter.

That code states, in part, “Upon request of the assessor or the sheriff of the county, the board of supervisors shall contract with and employ legal counsel to assist the assessor or the sheriff in the performance of his or her duties in any case where the county counsel or the district attorney would have a conflict of interest in representing the assessor or the sheriff.”

The board had directed the County Counsel’s Office to erect an “ethical wall” in order to allow one of the department’s staffers to represent Rivero. Rivero, however, would not accept that representation, maintaining that the office had a conflict of interest.

Arguing the statutory requirements

At Friday’s hearing, Rivero – wearing his sheriff’s uniform – sat beside his attorney, Paul Coble of the Jones & Mayer law firm.

The county was represented by Deputy County Counsel Lloyd Guintivano. Anderson and Board Chair Rob Brown were present for the hearing, as they had expected o testify. However, no one was called to the stand during the hearing.

Guintivano and Coble argued before Henderson over whether the board was required by state government code to provide Rivero with an attorney.

Coble said the law required the board to provide legal counsel to the sheriff when necessary to assist him in carrying out his duties.

“So once it’s established that the need for legal counsel is there and the county counsel is conflicted out, once those facts are there the board doesn’t have discretion,” Coble said.

On the matter of Rivero’s petition for a writ to get the board to hire him an attorney, Henderson wanted the attorneys to discuss the specific nature of the issue on which Rivero is seeking legal advice, and he also wanted to know how actions taken by the district attorney would affect Rivero in his performance.

Coble said the district attorney’s concern relates to a pending criminal prosecution, in which he may need to disclose to the defense what “may be a lack of credibility” on Rivero’s part.

He said Anderson has invited Rivero to be heard on the matter, and up through the end of last year he had planned to convene a panel of district attorneys from outside of the county to decide the matter. More recently, Anderson has decided to settle the matter himself.

In order to have the ability to dissuade Anderson from taking action against him, “The sheriff needs legal counsel,” Coble said.

If Anderson decides that Rivero has credibility issues, “It not only does not end with a single case, it cannot end with a single case,” Coble said.

Anderson’s decision could impact Rivero’s longterm relationship with his staff, Coble said. In a rural county like Lake, a sheriff can be expected to respond to crime scenes and incidents.

He suggested a scenario in which the sheriff would have to refuse to handle a call because he couldn’t testify in court. “That’s the ongoing impact that it has.”

Coble said the supervisors had a mandatory duty, “not an exercise in budgetary discretion,” to provide Rivero with an outside attorney.

“I respect the fact that Mr. Anderson has been holding off on his decision. It's a very necessary decision in this pending prosecution,” said Coble.

While he has a differing view than Anderson on what that decision ultimately should be, “We all agree he has a decision to make,” Coble said.

He said Anderson was getting “out on a limb” in terms of the case’s timeline, and asked the court to make a decision as rapidly as possible.

Guintivano argued that Rivero’s need for outside legal counsel had become moot since Anderson was no longer planning to convene a panel, but instead was proposing a meeting between he and Rivero.

Guintivano said it also was important to note that the district attorney has the exclusive duty to determine Brady disclosures, and he was extending the meeting offer to Rivero as a courtesy.

“This issue has now been mooted by the district attorney’s change in position,” he said.

The meeting Anderson is proposing would not prevent or impede any of Rivero’s duties as sheriff, Guintivano said. Rivero would not lose any of his powers, his peace officer status or ability to testify.

The Board of Supervisors decided that Rivero did not need outside legal representation because of the ethical wall alternative, Guintivano said.

Judge Henderson asked if County Counsel Anita Grant advised the board during its March 6 meeting that her office had the ability to erect an ethical wall and represent the sheriff.

“The county and the board explored that option,” Guintivano said.

He said that the county now only has this proposal from Anderson to meet with Rivero. Guintivano suggested the court could open up a slippery slope if it determined legal counsel was needed merely for meetings between department heads.

Potential for a ‘profound and lasting effect’

Coble said the board’s decision to deny Rivero outside legal counsel came months after Anderson decided not to use the Brady panel. He said Rivero made the request after the panel was dropped.

“We still have a situation where this sheriff, who I’ll represent to the court is not a member of the bar, is being offered a meeting with a member of the bar and one of the top two attorneys in the county,” said Coble.

The result, he said, would have a “profound and lasting effect” on Rivero’s ability to do his job.

Coble said the government code doesn’t include meeting scenarios, but addresses the need for legal assistance regarding official duties. He said the proposed meeting between Rivero and Anderson would address the sheriff’s ability to testify in court.

In the board’s March 6 meeting, Grant did not tell supervisors to let her handle the case, but suggested they hire Rivero an attorney, Coble said. He said Grant said there was nothing to stop a small office from erecting an ethical wall, but she acknowledged a conflict of interest.

Henderson asked whether the panel or the private meeting with Anderson ultimately would have the same affect on Rivero.

Guintivano said what’s currently proposed would involve a discussion between the district attorney and sheriff, avoiding the due process concerns that had arisen regarding the panel. What ultimately might happen was speculation.

“The sheriff will still be able to testify in court, regardless of the outcome, and we’re not even there yet,” Guintivano said.

Coble ended by telling the court that while he was grateful that the district attorney was offering to give Rivero the chance to be heard, “for him to be heard he needs the assistance of legal counsel before the bell is rung, not afterwards.”

Judge Henderson said he would try to get the decision out as quickly as he can, estimating it would be complete within two to three weeks.

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Written by: Elizabeth Larson

Published: 21 July 2012

Police investigate armed robbery report at Clearlake business

CLEARLAKE, Calif. – Police are searching for the suspect alleged to have robbed a Clearlake coffee shop at gunpoint on Tuesday morning.

Sgt. Rodd Joseph said the incident occurred at Catfish Coffee House, located at 14624 Lakeshore Drive.

He said police responded to the business at 7:10 a.m. Tuesday shortly after the incident was reported and met with the clerk, who described the assailant as a white male adult in his 20s.  

The suspect was further described as being about 6 feet tall with a slim build, light brown or reddish hair and having a goatee and mustache. Joseph said the suspect was last seen wearing a dark-colored hoodie-type sweatshirt.  

The weapon was described as a black or gray-colored semi-auto type handgun with a square-ended barrel and having a checkered patterned grip, Joseph said.

Joseph said the suspect demanded money. The clerk complied with the assailant’s demands and was uninjured.  

The suspect fled the business with an undisclosed amount of cash. No vehicles were seen and the suspects last direction of travel is not known, Joseph said.

Police are asking for the public’s assistance in identifying the suspect.

Anyone with information on this incident is asked to contact the Clearlake Police Department at 707-994-8251. Callers may remain anonymous.

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Written by: Lake County News reports

Published: 18 July 2012

Police arrest Lucerne man for stealing vehicle, seek links to other vehicle theft cases

CLEARLAKE, Calif. – Police have arrested a Lucerne man in connection with a Wednesday vehicle theft and an earlier case involving stolen checks, and they are investigating his possible links to other recent vehicle theft cases in Clearlake.

John Alvie Ferrell, 26, was arrested early Wednesday morning, according to Sgt. Rodd Joseph of the Clearlake Police Department.

Ferrell was arrested on felony charges of vehicle theft, first degree burglary, forgery, two counts of receiving stolen property, two counts of identity theft, a bench warrant and a parole violation, and misdemeanors of providing a false name to a police officer and battery on a person, according to jail records. He’s being held without bail.

Joseph said that at about 5:15 a.m. Wednesday Clearlake Police officers took a stolen vehicle report at Flyers gas station, located at 15010 Lakeshore Drive.

Witnesses gave officers a description of a possible suspect who was seen on a bicycle at the station just prior to the theft, Joseph said. Officers searched the area but were unable to locate the stolen vehicle, a blue Toyota Yaris.

Just before 7 a.m. officers were contacted by a witness who reported that he had been walking in the area of Mullen Avenue when he was approached by another male subject, Joseph said.

This subject told the witness that he had stolen a vehicle from Flyers a short time earlier and had left his bicycle in the area. Joseph said the subject asked the witness to retrieve his bicycle from the area near Flyers for him and he would pay the witness for returning the bicycle to him. The witness went to Flyers, located the bicycle and called police.

This witness described the home on Mullen Avenue where the possible suspect was located, Joseph said. He further reported that there was a vehicle in the driveway which was concealed under a tarp.

Joseph said graveyard and day shift officers went to the address in the 3900 block of Mullen Avenue.  As officers were arriving, a vehicle drove away from the home and parked in another driveway across the street. An unidentified male driver fled from the vehicle back towards the home. The vehicle was identified as the stolen vehicle in question.

Officers made contact at the home where several persons were contacted. One of the subjects contacted was later identified as Ferrell, who allegedly provided a false name to officers during contact Joseph said.

Ferrell matched the description of the person on the bicycle at the time of the theft and also that of the person described by the witness who claimed to have stolen the car from Flyers. Joseph said Ferrell was detained; he was uncooperative with police and denied stealing any vehicles.

A search of the home located stolen property which had been inside the vehicle when it had been stolen, Joseph said. Additional property was found in the home linking Ferrell to at least one other recent vehicle burglary that had not yet been reported to police.  

The property owner was contacted and identified the stolen property as belonging to him. Joseph said it was determined to have been stolen from a parked vehicle at the Travelodge, located at 4775 Old Highway 53, between Tuesday evening and Wednesday morning.

Ferrell was identified by witnesses as the person on the bicycle at Flyers at the time of theft, and the person who claimed to had stolen the vehicle at Flyers asking a witness to return his bicycle to him, Joseph said.

Police subsequently arrested him for vehicle theft, possession of stolen property, providing a false name to police and identity theft. Once Ferrell’s true name was determined, he was found to be a wanted parolee at large and had several warrants for his arrest, Joseph said.

Joseph said the stolen vehicle and property were returned to the vehicle’s owner.

While Ferrell was being processed at the police department, an officer recognized Ferrell from a recent case he had investigated, Joseph said.

On June 16, a vehicle had been reported stolen from the 15200 block of Lakeshore Drive. Joseph said no suspect had been identified at the time but when the vehicle was later located, the vehicle’s owner reported several checks stolen from his vehicle.  

He said that on July 2, several unidentified suspects had cashed the stolen checks at Foods, Etc. located at 15290 Lakeshore Dr. Foods, Etc. employees provided police with video surveillance of the crime.  False names were used on the checks so no suspects had yet been identified.

The officer reviewed the video surveillance he had taken as evidence on July 2 and positively identified Ferrell in the video, Joseph said. Based on this new discovery, Ferrell was additionally charged with possession of stolen property, burglary, forgery and identity theft.

The Clearlake Police Department has had a rash of recent stolen vehicles, some of which are still under investigation, Joseph said. Officers are searching for leads to try and link Ferrell to any of the recent stolen vehicle thefts.  

Joseph reminded city residents to keep their vehicles locked and to never leave a vehicle’s engine running while the vehicle is unattended. A running vehicle is an easy target for a car thief.

Anyone with information on any of these vehicle theft crimes is urged to contact the Clearlake Police Department at 707-994-8251. Callers may remain anonymous.

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Written by: Lake County News reports

Published: 12 July 2012