MENDOCINO Co., 2/9/21 — Among the endless questions facing cannabis growers — or at least those who’ve actually made it through the regulatory tangle — is what rights they have to compensation if their product is seized and destroyed?
And as with many things in this industry in flux, the answer is still being defined in the courts and in the legislature. And in that evolving case law Mendocino County cannabis grower Andres Rondon has already struck out twice so far in state court, and now faces possible dismissal of his federal case.
Back in 2018 Rondon’s Potter Valley-based cannabis business, Skunkworx, was raided by Mendocino County Sheriff’s Office deputies. In 2019 he filed a lawsuit in Mendocino Superior Court alleging that, as a legal grower, his product had been improperly seized and destroyed. Then, when he lost the case in Superior Court and on appeal, he filed a new civil rights case in federal court, making the same claims. The federal civil rights violation lawsuit seeks $800,000 in damages.
Now lawyers for the County of Mendocino are seeking to have the federal lawsuit dismissed, on the premise that though Cannabis is locally legal, it remains federally illegal, and because the case has already been tried. To the legality of the cannabis in question, a California Public Records Act request to the County shows that Rondon filed for a cannabis growing permit in July 2017, prior to the raid, and withdrew the application in December 2019.
The motion to dismiss was set to be heard Jan. 13 in the courtroom of United States District Judge Saundra Brown Armstrong. Instead, the federal judge canceled the hearing and is now deciding the case based on submitted documents. No ruling had been issued as of Feb. 8, according to Armstrong’s online calendar
Arthur Angel, attorney for Rondon and Skunkworx, said in an interview that it’s “hypocritical” for the same local government that is in the process of regulating and taxing cannabis to seize and destroy a product being cultivated lawfully, and then hide behind federal law.
“You have to take a step back and look at this argument by the county. If it’s illegal, then they are co-conspirators,” Angel said.
In October of 2018 Skunkworx Pharms owner, Andres Rondon, was in Southern California when one of his employees called to alert him of a robbery in progress, according to the lawsuit.
Trusting he could avail himself of the same options as any law abiding citizen, Rondon did the perhaps not-so-obvious thing, he called the Mendocino County Sheriff’s Office to report the theft. According to court records, Rondon claims that officers showed up some two hours later, but that they didn’t immediately investigate the robbery, or even the vehicle left behind by the thieves.
Instead, he says they left and came back with a search warrant and a wood chipper.
In the records Rondon further says that the deputies ran some 350 cannabis plants on the verge of harvest through the wood chipper and destroyed equipment and plant starts for 2019. The search warrant affidavit included in the court file shows that from the MCSO’s side the incident did begin with a call about intruders.
“Caller advised there were four subjects, dressed in police gear with long rifles coming onto their property and into their residence. The caller believed the suspects were not police but people dressed up as police, ” the county’s search warrant affidavit states. When deputies arrived on the scene they observed two subejcts on the property. “Both subjects fled the area and as of yet have not been contacted,” the affidavit reads.
While on the property, the responding deputies observed 14 grow houses. They called in and were told a search of records under both the name and address showed no permits to grow cannabis. Angel, Rondon’s lawyer, argues that the grows were permitted and that paper copies were available at the farm. Neither side presented proof of legality or illegality in the court files.
First came the state lawsuit in Mendocino Superior Court
Angry about what he saw as a miscarriage of justice, Rondon filed suit. Initially it seemed as though the case would help clear up some important issues about regulation and enforcement of cannabis laws. Though the case in federal court remains pending, the case in state court has already illuminated state laws that may not be to the linking of growers.
The case has highlighted existing state law that provides immunity to law enforcement officers, when on duty, even if the search itself turns out to have had legal problems, and even without an argument over legality or illegality. The state appeals court record also demonstrated there are state laws that say that when cannabis is seized, it can be destroyed on site, except for a sample used for evidence. The questions of whether the cannabis grow was legal or not, or whether the search was legal or not have never been litigated as part of this case.
Appeals court says it can’t change state laws
Though the case in state court had not technically been resolved, it became essentially moot when the appeals court agreed with the Mendocino County Superior Court ruling that legal immunity protects officers of the law in performance of their duties from being sued, even if acting on bad information. In upholding the decision to dismiss Rondon’s suit in October, judges from California’s First Appellate District wrote that the application of governmental immunity in cases like his does cause hardships to legitimate cannabis farmers whose crops are mistakenly destroyed. “We are not unsympathetic,” the judges wrote. The appeals court pointed out that it would be up to the state legislature to change the laws.
Another state law allows for the destruction of cannabis under a search warrant, whereas a different product would normally be preserved by those conducting the search.
“The deputy sheriffs—as Rondon alleges—were acting in the scope of their official duties, as they first obtained and then executed a search warrant authorizing them to search for marijuana. The warrant specifically authorized them to dispose of marijuana pursuant to Health and Safety Code section 11479, if applicable. Under certain conditions, this statute permits law enforcement agencies, after seizure of a suspected controlled substance such as ‘growing or harvested cannabis,’ to preserve a representative sample and destroy the rest,” the judges wrote.
On to federal court
During the appeal process, Rondon’s lawyer Angel, then decided the state lawsuit was probably dead and focused on a new federal lawsuit he filed, where he hoped to prove and recover damages. That case is still in court, though the judge is currently considering a motion to dismiss. “Plaintiffs were engaged in the lawful cultivation of cannabis, having complied with all licensing and registration requirements of the state of California and defendant Mendocino County, as the complaint specifically avers. Their licensure and registration were shown on the databases maintained by the state and Mendocino County,” states an opposition to the county’s motion to dismiss, filed by Angel.
The defendants (the County of Mendocino) have never argued that the plants were illegal in the court case and Rondon faced no criminal charges related to the cannabis grow. According to the Mendocino Superior Court’s online list of court files, Rondon has never been charged with a crime in the county, appearing in 2016 and 2018 on civil matters.
Mendocino County Counsel Christian Curtis explained in an interview that from the County’s perspective the federal case isn’t about whether the cannabis was legal or not, but about the fact that previously litigated claims are not allowed.
The county is now making two arguments for dismissal, neither of which have anything to do with whether the weed was legal or not: that it should be dismissed because the case has already been litigated in state court, and because damages can’t be recovered in federal court from something which is federally illegal.
“The property in question is primarily Plaintiffs’ cannabis plants. Plaintiffs seek lost profits stemming from their inability to sell the cannabis,” Mendocino County’s motion to dismiss read.
“These damages, however, are unavailable, because the cultivation of cannabis remains prohibited by federal statute. Consequently, ‘Plaintiffs face the insurmountable hurdle that federal law does not recognize any protectible liberty or property interest in the cultivation, ownership, or sale of marijuana, ” the county’s motion reads.
Angel believes the case illustrates serious flaws in how marijuana is regulated by the county and how the law surrounding the emerging farm product is enforced. He said the county was more interested in litigating the case than investigating what really happened and creating a remedy
“I told them I’d be happy to speak to the sheriff, to the D.A. or whoever I needed to talk to and get to the bottom of this. They just blew me off. They remained irresolute throughout. From what I’ve heard informally some of this, by no means an isolated incident,” Angel said.