9th Circuit Wrestles With Medical Pot Case

July 13th, 2011 by admin Leave a reply »

     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,

Article source: http://www.courthousenews.com/2011/07/13/38101.htm