sacv 13-0002 green earth center v. city of long beach - long beach warrantless police raids of...
DESCRIPTION
Long Beach Police regularly raid medical marijuana dispensaries and take medication, money, and destroy equipment. Several collectives have filed suit against Long Beach for using excessive force, warrantless searches, and deceptive warrants to engage in behavior that violates the Constitution (Fourth Amendment). These illegal searches and seizures are ongoing and constitute a pattern of illegal conduct by Long Beach and its police officers. The actions of the police need to be stopped before someone is hurt or killed. In 2010, officers, through excessive and unreasonable force, without care or concern for human life, killed 35-year-old Doug Zerby. There have been numerous incidents of bad behavior. Advocates claim Long Beach officials take bribes and have retaliated because their bribe taking system was struck-down by a California Appeals Court.TRANSCRIPT
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MEMORANDUM IN SUPPORT OF EX PARTE APPLICATION FOR T.R.O.
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MATTHEW PAPPAS (SBN: 171860) CHARLES SCHURTER (SBN: 174261) LEE H. DURST (SBN: 69704) 22762 Aspan Street, Suite 202-107 Lake Forest, CA 92630 Phone: (949) 382-1485 Facsimile: (949) 242-2605
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION
GREEN EARTH CENTER, INC.; DANK CITY PATIENTS GROUP INC.; NATURECANN, INC.; INDUSTRY GREEN COLLECTIVE, INC.; KAI KEM INC.; CHRONIC COLLECTIVE; COMPLETE ALTERNATIVE MEDICINE; PATIENTS REPUBLIC COLLECTIVE; 562 COLLECTIVE; DEMITRI WOODARD and CHRIS WOODARD, Plaintiffs, v. CITY OF LONG BEACH, CALIFORNIA; DAVID STROHMAN; OSCAR VALENZUELA; ALDO DECARVALHO; CHRIS VALDEZ; DOUGLAS LUTHER; and DOES 1 to 10,
Defendants.
No.: SACV 13-0002 ALG (JPRx) Judge Andrew Guilford MEMORANDUM OF POINTS AND AUTHORITIES IS SUPPORT OF PLAINTIFFS’ APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION Date: May 9, 2013 Time: N/A Dept: Santa Ana, D10
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................................................................................... IV
DEFINITION OF ABBREVIATIONS ............................................................................. VII
BASIS FOR EX PARTE RELIEF (L.R. 7-19) .................................................................. VII
OPPOSING COUNSEL (L.R. 7-19) .................................................................................... IX
DISCUSSION .......................................................................................................................... 2
A. LONG BEACH HAS ENGAGED IN A LONGSTANDING AND WIDESPREAD PATTERN OF VIOLATING PLAINTIFFS’ FOURTH AMENDMENT RIGHTS. .................................................................................................. 2
B. LONG BEACH HAS ENGAGED IN A PATTERN OF USING EXCESSIVE FORCE AGAINST THE PLAINTIFFS. .......................................................................... 3
1. The law at issue in every Long Beach raid is a municipal ordinance the violation of which is a non-violent misdemeanor similar to not having a city permit to display a sign. 4
2. Officers have engaged in a pattern of using excessive force in raids related to non-violent misdemeanors where no threat to their safety exists. ............................................ 5
3. The officers’ conduct constitutes excessive force under Graham. ............................ 7
4. There is no basis for pointing submachine guns at patients. ..................................... 7
C. THE CITY HAS ENGAGED IN A PATTERN OF WARRANTLESS SEARCHES AND SEIZURES. .......................................................................................... 9
D. THE CITY HAS ENGAGED IN A PATTERN OF OBTAINING WARRANTS THROUGH DECEPTIVE AFFIDAVITS. ..................................................................... 10
1. California law allows collectives to operate as storefront dispensaries. ................. 12
2. The warrant affidavits omit material information and are deceptive....................... 13
E. LONG BEACH HAS RETALIATED AGAINST THE PLAINTIFFS. ............... 19
F. LONG BEACH OFFICERS HAVE ATTEMPTED TO COVER-UP THEIR ILLEGAL ACTIONS BY DESTROYING VIDEO EQUIPMENT AND THREATENING WITNESSES. ...................................................................................... 21
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G. THE INVASIVE AND RAMPANT PATTERN OF VIOLATIONS BY LONG BEACH REQUIRES INTERVENTION BY THE COURT. ........................................ 22
H. PLAINTIFFS SATISFY THE FOUR REQUIREMENTS FOR INJUNCTIVE RELIEF. ............................................................................................................................. 25
CONCLUSION ...................................................................................................................... 25
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MEMORANDUM IN SUPPORT OF EX PARTE APPLICATION FOR T.R.O. - iv
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TABLE OF AUTHORITIES
CASES
Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970) ............................................................... 23
American Trucking Ass’n v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) ......... 2
Amnesty Am. v. Town of W. Hartford, 361 F.3d 113 (2d Cir. 2004) .................................... 23
Ass’n of Surrogates v. New York, 966 F.2d 75 (2d Cir. 1992) .............................................. 25
Baird v. Renbarger, 576 F.3d 340 (7th Cir. 2009) ................................................................. 7, 8
Baker v. McCollan, 443 U.S. 137, 61 L.Ed.2nd (1979) ............................................................. 2
Barnes v. Texas, 380 U.S. 253 (1965) .................................................................................... 16
Bravo v. City of Santa Maria, 665 F.3d 1076 (9th Cir. 2011) ................................................. 11
Brown v. Plata, 131 S. Ct. 1910 (2011) .................................................................................. 22
Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010) ................................................................. 3
Cash v. County of Erie, 654 F.3d 324 (2d Cir. 2011) ............................................................. 23
Chism v. Washington, 661 F.3d 380 (9th Cir. 2011) ............................................................... 11
City of Long Beach v. 562 Collective, et al., L.A.Sup.Ct. No. NC055051 (2011) .................. 5
City of Riverside v. Inland Empire Patients Health and Wellness,
Cal. Supr. Ct. No. S198638 (2013) ............................................................................... vi, vii
Community for Creative Non-Violence v. Unknown Agents, 797 F.Supp. 7 (D.D.C.1992) ... 2
Conner v. City of Santa Ana, 897 F.2d 1487 (9th Cir. 1990) .................................................... 2
Connick v. Thompson, 131 S.Ct. 1350, 179 L.Ed.2d 41 (2011)............................................. 24
Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001) ................................................................ 8
Easyriders Freedom FIGHT v. Hannigan, 92 F. 3d 1486 (1996) ............................................. 2
El Dorado Bar & Grill v. City of Long Beach, CV-07294 PA-AGR (2012) .......................... 20
Ewing v. City of Stockton, 588 F.3d 1218 (9th Cir. 2009) ...................................................... 11
Forrester v. City of San Diego, 25 F.3d 804 (9th Cir. 1994) ..................................................... 3
Forschner Grp., Inc. v. Arrow Trading Co., Inc., 124 F.3d 402 (2d Cir. 1997) ..................... 23
Garcia v. County of Merced, 639 F.3d 1206 (9th Cir. 2011) ................................................... 11
Graham v. Connor, 490 U.S. 386 (1989) .......................................................................... 3, 7, 8
Illinois v. Gates, 462 U.S. 213 (1983) ..................................................................................... 10
In re Tyrell J., 8 Cal.4th 68, 76 (1994) ...................................................................................... 9
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Inmates of the Attica Corr. Facility v. Rockefeller, 453 F.2d 12 (2d Cir. 1971) .................... 22
International Molders & Allied Workers v. Nelson, 799 F.2d 547 (9th Cir. 1986) .......... 22, 23
Jenkins v. Bd. of Educ. 463 F. Supp. 2d 747 (S.D. Ohio 2006) ............................................. 19
Jenkins v. Rock Hill Local Sch. Dist. 513 F.3d 58 (6th Cir. 2008) ......................................... 19
LaDuke v. Nelson, 762 F.2d 1318 (9th Cir. 1985) ................................................................... 23
Laird v. Tatum, 408 U.S. 1 (1972) .......................................................................................... 19
Liston v. Cty of Riverside, 120 F.3d 965 (9th Cir. 1997) .................................................. 11, 16
Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2nd 1081 (1961) .............................................................. 2
Mendocino Env’l Ctr. v. Mendocino County, 14 F.3d 457 (9th Cir. 1993) ............................ 20
Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283 (9th Cir. 1999) ..... 20
Millender v. County of L.A., 620 F.3d 1016 (9th Cir. 2010) (en banc) .................................. 11
Milliken v. Bradley, 433 U.S. 267 (1977) ............................................................................... 23
Mincey v. Arizona, 437 U.S. 385, 57 L.Ed.2nd 290 (1978) ............................................... 9, 10
Mission Power Engineering Co., v. Continental Casualty Co.,
883 F.Supp 488, 492 (1995) ............................................................................................ v, vii
Monell v. New York City Department of Social Services, 436 U.S. 658 (1978) ....... 23, 24, 25
Motley v. Parks, 432 F.3d 1072 (9th Cir. 2005) (en banc) ........................................................ 3
Nelson v. City of Davis, 685 F.3d 867 (9th Cir. 2012) .............................................................. 3
NYS. Ass’n for Retarded Children, Inc. v. Carey, 551 F.Supp. 1165 (E.D.N.Y. 1982) ........ 22
Pembaur v. Cincinnati, 475 U.S. 469 (1986) .......................................................................... 24
People v. Hochanadel, 176 Cal.App.4th 997 (2009) ......................................................... 12, 13
People v. Jackson, 210 Cal.App.4th 525 (2012) ..................................................................... 13
People v. Kurland 28 Cal.3d 376 (1980) ........................................................................... 15, 16
People v. Maestas, 204 Cal.App.3d 1208 (1988) .................................................................... 13
People v. Scott, 52 Cal.4th 452 (2011) ................................................................................... 13
People v. Ulloa, 101 Cal.App.4th 1000 (2002) ....................................................................... 17
Pratt v. Chicago Housing Authority, 848 F.Supp. 792 (N.D.Ill.1994) ..................................... 2
Qualified Patients Assn. v. City of Anaheim, 187 Cal.App.4th 734 (2010) ........................... 13
Robinson v. Solano County, 278 F.3d 1007 (9th Cir. 2002) (en banc).................................. 3, 4
Sloman v. Tadlock, 21 F.3d 1462 (9th Cir. 1994) ................................................................... 20
Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310 (9th Cir. 1989) ........................................... 20
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Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971) ....................................... 22
Todaro v. Ward, 565 F.2d 48 (2d Cir. 1977) .......................................................................... 23
U.S. v. $186,416.00 in U.S. Currency, 590 F.3d 942 (9th Cir. 2010) .......................... 11, 18, 19
United States v. Pitts, 6 F.3d 1366 (9th Cir.1993) ................................................................... 11
United States v. Stanert, 762 F.2d 775 (9th Cir. 1985) ............................................................ 10
Welsh v. Wisconsin, 466 U.S. 740, 80 L.Ed.2nd 732 (1984) ............................................. 9, 10
Winter v. Natural Resource Defense Council, Inc., 129 S. Ct. 365, 377, 555 U.S. 7, 172 L.
Ed. 2d 249 (2008) .................................................................................................................. 2
STATUTES
42 U.S.C. § 1983 ..................................................................................................................... 10
Ca. Health & Safety Code § 11362.5 ............................................................................ 9, 12, 19
Ca. Health & Safety Code § 11362.7 ........................................................................................ 9
Ca. Health & Safety Code § 11362.768(e) ............................................................................. 12
Ca. Health & Safety Code § 11362.775 ............................................................................ 12, 19
Disabled Persons Act (Ca. Civil Code § 54) ............................................................................. v
LBMC § 1.32.010(A) ................................................................................................................ 5
LBMC § 21.44.035.................................................................................................................... 4
LBMC § 5.89.030(B) .................................................................................................. 15, 17, 18
LBMC § 5.87.100(B) ................................................................................................................ 4
Long Beach Municipal Code Chap. 5.87 ........................................................................ 4, 5, 10
Long Beach Municipal Code Chap. 5.89 ......................................................................... passim
Senate Bill 420 § 1(b)(3) (enacted 2003, effective 1/1/2004) ................................................. 12
RULES
Fed. R. Civ. Proc. 65 ............................................................................................................... vii L.R. 65-1 ................................................................................................................................. vii L.R. 7-19 ................................................................................................................................. vii
CONSTITUTIONAL PROVISIONS
U.S. Constitution, Fourteenth Amendment ............................................................................... 2
U.S. Constitution, Fourth Amendment ............................................................................ passim
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DEFINITION OF ABBREVIATIONS
The Plaintiffs submit this Memorandum together with a Request for Judicial Notice of
relevant documents along with Volumes 1 through 7 of Separately Bound Exhibits. The
Citations to documents in the Request for Judicial Notice are referenced RJN followed by the
exhibit designation for the document in question. Citations to exhibits included in the seven
(7) volumes of Separately Bound Exhibits are referenced SBE followed by a space and the
applicable volume number (1-7) followed by a dash and the exhibit number. The Separately
Bound Exhibits have been Bates numbered and all page number references are to the Bates
page of the specific item.
BASIS FOR EX PARTE RELIEF (L.R. 7-19)
“The purpose of the first part of the ex parte motion papers is to establish why the
accompanying proposed motion for the ultimate relief requested cannot be calendared in the
usual manner.” Mission Power Engineering Co., v. Continental Casualty Co., 883 F.Supp 488,
492 (1995).
Plaintiff will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures.
The declarations and evidence included show that:
The Plaintiffs in this case are medical cannabis patient collectives located in Long
Beach, California. Under California law, collectives can only be groups of patients with
doctor recommendations for medical cannabis. For approximately three (3) years, the patients
have been challenging municipal medical cannabis ordinances enacted by the City of Long
Beach. Currently, there are multiple actions pending in state court challenging the validity of
the now-effective Long Beach ordinance, LBMC Chap. 5.89. The primary basis for Plaintiffs’
challenge is: 1) the City’s failure to comply with the provisions of its Charter when it enacted
the law; and 2) the ordinance is discriminatory and thus contravenes the California Disabled
Persons Act (Ca. Civil Code § 54) (CDPA). The Plaintiffs’ claims are not related to the
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narrowly-scoped California Supreme Court decision handed-down yesterday in City of
Riverside v. Inland Empire Patients Health and Wellness, Cal. Supr. Ct. No. S198638 (2013).1
In that case, the state Supreme Court held municipal bans of medical marijuana dispensaries do
not conflict with state medical marijuana laws under art. XI, § 7 of the state constitution.
Plaintiffs’ CDPA and city charter issues have nothing to do with art. XI, § 7 preemption.
Moreover, sensationalistic press reports claiming the high court held cities can “ban”
collectives are not accurate. The court’s holding provides only that city bans are not
preempted under a specific part of the state constitution.
Despite the fact that the state cases challenging LBMC Chap. 5.89 are, for the most
part, based on the City’s Charter and the CDPA, those cases, which have been transferred to
the Complex Litigation Division of the Los Angeles Superior Court, are currently stayed until
a date in June, 2013. Additionally, repeated requests for relief in those cases have been
delayed or denied as many state trial and appellate courts awaited a decision by the state
Supreme Court in the Riverside case. Accordingly, it will now take at least until mid-June for
the state trial court stay to be lifted. No action on the already delayed but totally separate and
independent legal challenges to LBMC Chap. 5.89 will take place until then.
In the meantime, as it has for the last three (3) years, Long Beach will continue to
engage in a pattern and practice of violating Plaintiffs’ Fourth Amendment rights. The
violations have nothing to do with the decision in the Riverside case or the separate and
different challenges pending against Long Beach in state court. Just days ago, on April 29 and
then again on May 2, 2013, Long Beach police officers using assault rifles, pointing guns at
patients, and destroying property, raided several of the Plaintiff collectives to enforce a City
ordinance the violation of which results in non-violent misdemeanor liability. The raids and
attacks by officers are brutal and have, on multiple occasions, resulted in physical injuries.
The substantial evidence provided by the Plaintiffs with this motion show photo images of
officers with assault weapons carrying-out the raids. Numerous declarations provided
1 In Riverside, the California Supreme Court noted the voters did not intend the criminal law and police be used to enforce local bans.
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demonstrate Long Beach has and will continue to violate the Fourth Amendment. Emboldened
by the state Supreme Court decision, the frequency and intensity of raids will no doubt
increase. Over the last several years, Long Beach has been found liable in Fourth Amendment
excessive force cases. Recently, an Orange County jury awarded 6.5 million dollars to family
members of a man shot and killed by Long Beach officers. Given their consistent pattern and
practice of battering down doors with assault weapons in-hand and fingers on the triggers of
those weapons, it is only a matter of time before the raids will result in another serious injury
or death. Given almost 100 raids have been conducted over the last few years where patients
are compliant and do not resist arrest, the continuing brutal use of force for a misdemeanor
offense is without basis.
Prior to filing this application, the Plaintiffs sought relief multiple times in state court
and have awaited the decision in the Riverside case through the state court stays of
proceedings. Prior to the stays, they sought relief for Fourth Amendment violations in Los
Angeles Superior Court. Despite the state judge’s finding that the City used “strong-arm”
tactics during a warrantless raid where no exigent circumstances existed, he refused to enjoin
the violations and instead told the collective to seek a protective order under state discovery
rules. Given the various state court stays, it will be more than a month at the very earliest
before the Plaintiffs’ can even file a motion in their cases challenging Chap. 5.89. During that
time, the brutal raids and seizures that take place between two and three times per week will
continue and very likely become more violent, frequent, and dangerous as the City’s typical
and misplaced belief that it can act with impunity is falsely bolstered by the Riverside decision.
Accordingly, ex parte relief is appropriate under Fed. R. Civ. Proc. 65, L.R. 7-19, L.R. 65-1,
and Mission Power Engineering, supra.
OPPOSING COUNSEL (L.R. 7-19)
Counsel for the Defendants in this proceeding is: Monte Machit, Deputy Long Beach
City Attorney, 333 W. Ocean Blvd., 11th Flr., Long Beach, CA 90802, phone: (562) 570-2200,
facsimile phone: (562) 436-1579, e-mail: [email protected].
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INTRODUCTION
Since February, 2011, the City of Long Beach (City) has conducted 42 warrantless
raids of medical marijuana collectives, 452 raids through fraudulent and incomplete warrants,
and has taken property it did not account for and which it has absconded with under color of
government authority. It has arrested hundreds of people and charged them under a
controversial city law, the violation of which results in non-violent misdemeanor liability. It
has taken action to stop the constitutionally protected speech of those it has attacked as well
as taken steps to thwart their advocates. It uses machine guns to execute search warrants for
alleged violation of the non-violent municipal misdemeanor. It has administered summary,
cruel, and unusual punishment without due process of the law during its “war on the Fourth
Amendment” that has continued for almost three (3) years. It has injured people and has
singled out some of those it has attacked on the basis of race. Relying on the current
controversy over medical marijuana and counting on the discriminatory animus, inaction,
and confusion of state courts, Long Beach officers, employees, and elected officials have
violated the constitutional rights of thousands citizens. The City has engaged in and has
condoned an unmistakable pattern of constitutional violations that continue unabated against
its citizens.
Repeated requests made to state courts for relief have been ignored. Here, the issue is
not whether medical cannabis should be legal for patients, but rather whether their most
basic constitutional rights have any meaning. Likewise, the City cannot choose to violate the
First or Fourth Amendments simply because it does not like patients challenging its local
ordinance. The latest attacks by Long Beach took place on April 29 and May 2, 2013. On
average, raids, arrests, and associated abuses take place two to three times per week.
2 The number of raids conducted with or without warrants is an estimate based on investigation and information more particularly set forth in the exhibits included with this motion. The Plaintiffs in this case do not represent all of the patient groups that have been raided in the City of Long Beach since 2011 There may have been more raids than estimated by Plaintiffs.
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DISCUSSION
A preliminary injunction is an “extraordinary remedy.” Winter v. Natural Res. Def.
Council, Inc., 129 S. Ct. 365, 377, 555 U.S. 7, 172 L. Ed. 2d 249 (2008). To obtain
injunctive relief, a plaintiff must establish: (1) likelihood of success on the merits; (2)
likelihood of irreparable injury in the absence of preliminary relief; (3) that the balance of
equities tips in plaintiff’s favor; and (4) that an injunction is in the public interest. American
Trucking Ass’n v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009).
A. LONG BEACH HAS ENGAGED IN A LONGSTANDING AND WIDESPREAD PATTERN OF VIOLATING PLAINTIFFS’ FOURTH AMENDMENT RIGHTS.
The Fourth Amendment, made applicable to the States by the Fourteenth Amendment,
provides: “The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but
upon probable cause, supported by oath or affirmation, and particularly describing the place to
be searched and the persons or things to be seized.” U.S. Constitution, Fourth Amendment;
Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2nd 1081 (1961); Baker v. McCollan, 443 U.S. 137, 142, 61
L.Ed.2nd (1979).
Courts have held that state policies or practices that violate Fourth Amendment rights
constitute irreparable injury and may be enjoined by federal courts. Easyriders Freedom FIGHT
v. Hannigan, 92 F.3d 1486, 1501 (9th Cir. 1996); see also, e.g. Conner v. City of Santa Ana, 897
F.2d 1487, 1493-94 (9th Cir. 1990) (enjoining City of Santa Ana from engaging in future
warrantless searches); see also, e.g., Community for Creative Non-Violence v. Unknown
Agents, 797 F.Supp. 7, 16 (D.D.C. 1992) (enjoining U.S. Marshals Service from Fourth
Amendment violations). When a government entity has engaged in a policy of violating the
Fourth Amendment, there is no adequate remedy at law. See, e.g., Pratt v. Chicago Housing
Authority, 848 F.Supp. 792, 796 (N.D.Ill. 1994) (enjoining Housing Authority from Fourth
Amendment violations).
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B. LONG BEACH HAS ENGAGED IN A PATTERN OF USING EXCESSIVE FORCE AGAINST THE PLAINTIFFS.
The Fourth Amendment prohibits officers from using excessive force when executing a
search warrant or arresting an individual. Graham v. Connor, 490 U.S. 386 (1989). In Graham,
the Court held that all claims that law enforcement officers have used excessive force - deadly or
not - in the course of an arrest, stop, or other “seizure” of a free person are properly analyzed
under the Fourth Amendment’s “objective reasonableness” standard. Id. Indeed, the right to
make an arrest or investigatory stop necessarily includes the “right to use some degree of
physical coercion or threat thereof to effect it.” Id. at 396.
The police arsenal includes many different types of force that can intrude upon the Fourth
Amendment rights of an individual to varying degrees. Nelson v. City of Davis, 685 F.3d 867,
878 (9th Cir. 2012). The Ninth Circuit has recognized that “physical blows or cuts” often
constitute a more substantial application of force than categories of force that do not involve a
physical impact to the body. Forrester v. City of San Diego, 25 F.3d 804, 807 (9th Cir. 1994)
(holding that the use of a progressive pain compliance device that inflicted temporary discomfort
on the arrestees was not a substantial intrusion). However, the absence of concussive force is not
determinative and “force can be unreasonable even without physical blows or injuries.” Bryan v.
MacPherson, 630 F.3d 805, 824 (9th Cir. 2010); see also, e.g., Motley v. Parks, 432 F.3d 1072
(9th Cir. 2005) (en banc) (pointing a weapon at unarmed child was unreasonable); see also, e.g.,
Robinson v. Solano County, 278 F.3d 1007 (9th Cir. 2002) (en banc) (pointing a weapon at
unarmed and nonthreatening individual was unreasonable).
In determining whether an officer's use of force was objectively reasonable, a court looks
at factors including the seriousness of the crime allegedly being committed, whether the officer
reasonably believes the suspect poses an immediate threat to anyone (including the officers
present), and whether a person is attempting to escape or actively resist arrest. See, e.g., Nelson,
685 F.3d at 880 (“[t]he fact that Nelson and his friends did not commit any chargeable offense,
or, at most, a misdemeanor, weighs heavily against the defendants’ use of force.”)
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Robinson illustrates the principle that less serious crimes do not justify an officer’s
display and pointing of a weapon absent an immediate threat. In that case, the police seized an
apparently unarmed 64-year-old man, a retired police officer, at gunpoint. The former officer
lived in a farmhouse on five acres of land and owned various livestock. He had apparently shot
two dogs belonging to his neighbor after observing them attacking and killing livestock on his
property, which was surrounded by a fence. He killed one dog and wounded the other and then
went off his land with his shotgun looking for the wounded dog.
When police came to his home later, he went out to talk with them while unarmed. He
claimed he was calm but the officers reported he was agitated. He complied with their orders to
put his hands up while an officer pointed his gun at him. Then an officer thrust his pointed gun
within three or four feet of his head. The ex-officer was then handcuffed and placed in a police
vehicle for a few minutes while officers talked to neighbors. The Ninth Circuit found that none
of the factors justifying the use of force were present. The crime being investigated was “at
most a misdemeanor,” and the suspect was apparently unarmed and approaching the officers
peacefully. The court held the police officers used excessive force in violation of the Fourth
Amendment by pointing the firearm at the plaintiff.
1. The law at issue in every Long Beach raid is a municipal ordinance the violation of which is a non-violent misdemeanor similar to not having a city permit to display a sign.
In the multiple warrantless searches and seizures at issue in this case, the laws being
enforced by officers are Long Beach Municipal Code (LBMC) Chap. 5.87 or Chap. 5.89, both of
which are city ordinances. SBE 5-99, Transcript of Proceedings, June 10, 2011, p.333, ll.11-22,
p.335, ll.4-15; p.337, ll.12-18; SBE 2-24, Castro Decl., p.37, ll.9-16. In almost all of the raids
where officers obtained search warrants, the law at issue was LBMC § 5.89.030(B). SBE 4-81,
Warr. Affidavit, p.279, ll.4-6. Violation of either LBMC Chap. 5.87 or Chap. 5.89 is a
misdemeanor. LBMC § 5.87.100(B), RJN Ex. 2, p.35, ll.11-15; LBMC § 5.89.060(A), RJN Ex.
1, p.9, ll.9-12. A separate Long Beach ordinance, LBMC § 21.44.035, requires a permit to
display a sign. RJN Ex. 4, p.45. Similar to LBMC Chap. 5.87 and 5.89, violations of mandatory
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provisions of the LBMC, like the sign law, also constitute a misdemeanor. See LBMC §
1.32.010(A) at RJN Ex. 3, p.45.
In the approximately 87 raids conducted by Long Beach since 2011, patients and
volunteers have been charged only with non-violent misdemeanors for allegedly violating
LBMC Chap. 5.87 or 5.89. SBE 7-125, S. Sandoval Decl., p.432, ll.16-26. After the applicable
provisions of Chap. 5.87 were deemed invalid by a state appellate court in October, 2011, the
City repealed that law and enacted Chap. 5.89.
2. Officers have engaged in a pattern of using excessive force in raids related to non-violent misdemeanors where no threat to their safety exists.
Despite being based on non-violent municipal misdemeanors, in every raid at issue in this
case, Long Beach Police officers have guns drawn. SBE 3-48, C. Lopez Decl., p.144, ll.25-28;
SBE 5-94, Photos of 5-10-2011 Raid, pp.313-14; SBE 7-116, Photos of 10-11-2012 Raid,
pp.414-15; SBE 7-125, S. Sandoval Decl., p.428, ll.1-11. They wear assault gear and point
machine guns at patients. SBE 7-116, Photos of 10-11-2012 Raid, pp.414-15. They use
battering rams. SBE 5-94, Photos of 5-10-2011 Raid, pp.314; SBE 5-99, Transcript of
Proceedings, June 10, 2011, p.333, ll.11-22:
“[JUDGE MADDEN:] It seems to me that the allegations [of the patient collective] in the case that it's alleged that the City, through officers and employees of the police department, an agency of the City, engaged in conduct that was not part of formal civil discovery. It was not based upon a search warrant. It was not based upon what I would refer to as exigent circumstances, instead, based upon what I read, officers used a battering ram and broke down a door and seized documents in the collective. I don't see anything presented by the city that shows anything other -- there's un-rebutted allegations that were made by the collective, and I didn't see any response to that by the City.” Hearing following Briefing by the Parties, June 10, 2011, City of Long Beach v. 562 Collective, et al., L.A.Sup.Ct. No. NC055051 (2011) (emphasis added).
Officers point guns at patients and threaten they will shoot them. SBE 5-85, S. Feathers
Decl., June 10, 2011, p.295, ll.6-20:
“The officers came with pistols drawn. They came to the window saying ‘don't fucking move or I'll fucking shoot you!’ ... [A]t gunpoint we were brought outside ... detective
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Strohman asked me if I wanted to talk now. I responded by saying ‘no’ then [he] said ‘wrong answer, now I will be impounding your car’ ... On the way to the station one of the officers laughed and asked what our ‘made-up reasons’ were for using medical marijuana. My response was that I have [Multiple Sclerosis].” (emphasis added.)
Officers engage in warrantless searches of personal items, including personal cell phones.
SBE 3-48, C. Lopez Decl., p.144, ll.17-20. They make disparaging racial remarks while
physically injuring people. SBE 1-14, Photos of 6-19-2012 Raid, p.54; SBE 1-11, D. Brooks
Decl., p.49, ll.12-23:
“I complied completely with the officers. After I was on the ground, several of the officers surrounded me. One of them walked on my back and stepped directly on my neck. It was extremely painful. I cried out and was told by one of the officers to ‘shut up’ and telling me I should be ‘used to it’ because I'm a black drug dealer ... Parts that were falling [from the camera being broken by officers] fell onto me and I again cried out. One of the officers told me, ‘shut up you dumb nigger.’”
Long Beach police officers unnecessarily destroy surveillance cameras and property.
SBE 7-116, Photos of 10-11-2012 Raid, p.414 (officer destroying security cameras); SBE 1-14,
Photos of 6-19-2012 Raid, p.55 (officer destroying cameras with metal pole); SBE 2-24, A.
Castro Decl., p.87, ll.12-14, “Naturecann was raided again by Long Beach police officers. The
destruction to the property and structure were unnecessary and cruel. Damages were extensive.”
When the raids take place, officers are threatening and often hit, kick, or manhandle
patients and collective volunteers. SBE 3-52, M. Kainoa Decl., p.152, ll.9-15:
“[After I shouted that we're getting raided,] I put my hands up and one of the cops had his gun in my face and he said, ‘You think its real fuckin funny to warn them the boys are coming don't you!’ He then told me to get on the ground and as I was lowering to my knees he kicks me in the back of my knee causing me to slam my knee on the ground and break open the wound from a previous surgery on my leg. (see attached photos as further exhibits A & B) This would later get infected while I was in jail.” (emphasis added.)
In every raid, patients and volunteers comply fully with commands issued by officers.
SBE 4-79, E. Sviatek Decl., p.266, ll.11-17 (“Myself and everyone helping me [were]
compliant and did not offer any resistance. One officer told me to get the ‘fuck on the ground
and if you run I will shoot you.’ That same officer still had his gun pointed at my face while he
grabbed me by my shirt from the font and proceeded to pull me down to the ground.”). On the
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one known occasion officers charged a patient with resisting arrest, the patient charged was a
blind man who was startled when the raid began. SBE 1-1, J. Theisen Decl., p.266, ll.18-20;
SBE 1-4, J. Theisen Complaint Letter to Internal Affairs, p.6. The resisting arrest charges filed
were later dismissed.
Despite the nearly 100 known raids in Long Beach since early-2011, only misdemeanor
charges have been filed and continued against patients. SBE 6-100, Atty. L. Durst Decl., p.352,
ll.11-15. Bizarre felony charges for belt buckles shaped like brass knuckles and a single known
charge for resisting arrest leveled against the aforementioned blind patient have all been
dismissed or refused by the District Attorney. SBE 7-125, S. Sandoval Decl., p.432, ll.14-26.
Other ancillary felonies unrelated to the patient collectives have periodically been leveled
against individuals and later dismissed or refused. SBE 6-100, Atty. L. Durst Decl., p.352; SBE
6-101, C. Farano Decl., p.353, ¶3.
3. The officers’ conduct constitutes excessive force under Graham.
Under the “seriousness of the crime allegedly being committed” part of the Graham test,
there is no doubt the non-violent misdemeanors at issue here are “minor” offenses. Likewise, no
patient has ever “attempted to escape or actively resist arrest” during any of the raids. Given the
same officers repeatedly participate in the collective raids and it is clear from the Plaintiffs’
evidence the officers knew from the many prior raids that the patients comply and do not resist
arrest, there is no basis to support that officers “reasonably believed the suspects posed an
immediate threat to anyone.” Accordingly, under Graham, the type of force consistently and
repeatedly used by Long Beach officers is excessive thereby violating the Fourth Amendment.
4. There is no basis for pointing submachine guns at patients.
In an important case where police conduct was similar to the conduct in this case, a
federal appeals court ruled that an officer’s action in pointing a submachine gun at people
present during the execution of a search warrant, including both the suspect and others present,
was unreasonable and violated the Fourth Amendment in the absence of any indication of a
threat to the officers or others. Baird v. Renbarger, 576 F.3d 340 (7th Cir. 2009).
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In Baird, the defendant officer was one of several involved in the execution of a search
warrant at an auto body shop and resale business located at an industrial park. The court noted
that the crime being investigated did not involve violence. Also, no suspect offered any
resistance. Despite this, the officer came to the search with a 9-millimeter submachine gun
slung around his neck. He pointed the submachine gun at the suspects, who had peacefully
complied with police instructions. The officer gathered the suspects together at gunpoint. Those
gathered in this manner included a group of Amish men, people well known for their non-violent
beliefs and practices. Id.
At the conclusion of the investigation, it was determined no crime had been committed.
Suit was thereafter filed contending, among other things, that the officer’s actions in pointing the
submachine gun was unreasonable. The court found there is no qualified immunity “when
police officers employ force that is clearly excessive or unreasonable under the circumstances.
That is the case here.” Baird, 576 F.3d at 342. The court found that the three major factors
spelled out in Graham all tended to show that the force used was objectively unreasonable in
Baird. Like in this case, the crime in Baird was not a violent one. There was no indication that
those being detained posed an immediate threat to anyone. None of the suspects attempted to
resist or flee. Baird, 576 F.3d at 345. Moreover, threat analysis must be based on objective
factors and not merely “a simple statement by an officer that he fears for his safety or the safety
of others.” Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001).
“[An officer's] subjective concerns do not transform this setting into one calling for such a heavy-handed use of force. Moreover, the facts show that the police were familiar with the site and had no reason to believe that there would be resistance.” Baird, supra, 576 F.3d at 344-45.
Here, the officers have raided each of the Plaintiff collectives multiple times. The City has
engaged in a pattern of raiding that started in early-2011. There has never been a fleeing
suspect, arrest resistance, or anything that would necessitate the use of machine guns. Similar to
the Amish suspects in Baird, medical marijuana patients are, for the most part, docile and non-
violent. The officers knew before each raid that the District Attorney, on multiple occasions,
refused to prosecute patients for any drug felony or trumped-up charge submitted. SBE 4-74,
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Letter from L.A. County Refusing Felony Charges, p.239. Yet as shown in SBE 7-116, Photos
of 10-11-2012 Raid, pp.414-15, and as described in various declarations included with this
motion, officers dressed in assault gear armed with military-style machine guns have repeatedly
broken down the doors of collectives with battering rams and with their fingers on the triggers of
their respective guns ready to fire at whatever patients may be in the collective at the time of the
raid. These are Long Beach officers (the federal Drug Enforcement Administration is not
mentioned in any of the warrants, including the warrant for the October 11, 2012 raid shown in
Ex. 116. The officers shown in all of the photos are Long Beach Police officers). Long Beach is
a “creature” of the California state government. California voters intended to eliminate fear of
criminal arrest and prosecution for medical cannabis patients. Ca. Health & Safety Code §§
11362.5 & 11362.7, et seq.
C. THE CITY HAS ENGAGED IN A PATTERN OF WARRANTLESS SEARCHES AND SEIZURES.
The absence of a search warrant raises a presumption that the search was unlawful.
Mincey v. Arizona, 437 U.S. 385, 390, 57 L.Ed.2nd 290, 298-299 (1978); In re Tyrell J., 8
Cal.4th 68, 76 (1994), overruled on other grounds.) The government bears the burden of
providing proof of a recognized exception to the warrant requirement, justifying a warrantless
search. Welsh v. Wisconsin, 466 U.S. 740, 749-750, 80 L.Ed.2nd 732, 742-743 (1984); People
v. James, 19 Cal.3rd 99, 106 (1977).
While officers have obtained search warrants for some of the nearly 100 raids conducted
by Long Beach since 2011, numerous raids are conducted without warrants. Following one of
the warrantless raids conducted in May, 2011, an injunction was sought by the collective raided
by city officers. In addressing a declaration submitted by a senior police officer trying to justify
the warrantless raid, Judge Patrick Madden said:
“I don't think it’s up to Officer Cooper to tell me whether or not he's complied [with the Fourth Amd]. If that were the case, we wouldn't need judicial officers to determine whether there is probable cause to issue a search warrant, an arrest warrant, whether there's probable cause to hold the defendant to answer for a felony, et cetera, et cetera, et cetera. There is no -- there's not one fact in here that rebuts any of the allegations made
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by the defendants that it was a search NOT incident to a lawful search warrant or any search warrant or that any exigent circumstances existed.” Id. at p.335, ll.4-15.
Despite his findings, Judge Madden, noting he had earlier determined LBMC Chap. 5.87
was constitutionally valid, refused to enjoin the City from enforcing what the state appellate
court later conclusively deemed to be invalid provisions of that ordinance. Instead, he found the
City’s Fourth Amendment violations breached discovery rules and told the patients to seek a
protective order. See SBE 5-99.
Shockingly, in an effort to dissuade the court from granting injunctive relief, Deputy City
Attorney Kendra Carney argued that the patients could file a 42 U.S.C. § 1983 action against the
City. SBE 5-99, Transcript of Proceedings, June 10, 2011, p.336, ll.3-4 (“CARNEY: If the
defendants would like to bring a section 1983 claim, as I discussed in my further opposition,
they are welcome to do so.”). Deputy Carney had herself been present during several
warrantless raids. SBE 1-2, Photos of Dep. City Atty. Carney Present at Feb. 2011 Raid, p.4;
SBE 5-94, Photos of Dep. City Atty. Carney Present at May. 2011 Raid, pp.311-12; SBE 1-19,
Long Beach City Attorney Threatens LB Post Over Negative MedPot Coverage, pp.62-63.
Approximately 40 of the raids conducted by Long Beach have been warrantless. SBE 7-
125, S. Sandoval Decl., p.428, ll.22-28; SBE 6-101, C. Farano Decl., pp.355-56, ¶7. As
discussed above, in the case City of Long Beach v. 562 Collective, supra, Judge Madden
deemed the May 10, 2011 raid took place without a warrant and absent any exigent
circumstances. In fact, like the 562 Collective raid, all of the warrantless searches conducted by
Long Beach were invalid. SBE 7-125, S. Sandoval Decl., p.428, ll.22-28. It follows that, for
each of the raids conducted without warrants including recent raids where no search warrant was
presented or found, the presumption is that the search was unlawful. See Mincey, supra. Under
Welsh, the City had the burden of showing proof of an exception to the warrant requirement – it
did not and it cannot show such an exception existed.
D. THE CITY HAS ENGAGED IN A PATTERN OF OBTAINING WARRANTS THROUGH DECEPTIVE AFFIDAVITS.
For a search warrant to be valid, it must be supported by probable cause. United States v.
Stanert, 762 F.2d 775, 778 (9th Cir. 1985); Illinois v. Gates, 462 U.S. 213, 238 (1983). “In
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determining whether an affidavit establishes probable cause for the issuance of a search warrant,
the court limits its review to the data contained within the four corners of the affidavit.” Ewing
v. City of Stockton, 588 F.3d 1218, 1225 n.8 (9th Cir. 2009); United States v. Pitts, 6 F.3d 1366,
1369 (9th Cir.1993).
“The Fourth Amendment is violated when a facially valid search warrant contains
deliberate or reckless omissions of facts that tend to mislead.” Garcia v. County of Merced, 639
F.3d 1206, 1212 (9th Cir. 2011). “Just as the Fourth Amendment prohibits warrantless searches
generally, so too does it prohibit a search conducted pursuant to an ill-begotten or otherwise
invalid warrant.” Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011). “Even when
only a portion of a search warrant is invalid, the subject of the search suffers a constitutional
violation.” Millender v. County of L.A., 620 F.3d 1016, 1024 (9th Cir. 2010) (en banc)
(emphasis added). A “judicial deception” claim exists if “the warrant affidavit contained
misrepresentations or omissions material to the finding of probable cause” and “the
misrepresentations or omissions were made intentionally or with reckless disregard for the
truth.” Bravo, 665 F.3d at 1083. Plaintiffs “had a constitutional right to not be searched and
arrested as a result of judicial deception.” Chism v. Washington, 661 F.3d 380, 393 (9th Cir.
2011). Whether the “judicial deception” was “by material false statements or material
omissions is of no consequence ... by reporting less than the total story, an affiant can
manipulate the inferences a magistrate will draw. To allow a magistrate to be misled in such a
manner could denude the probable cause requirement of all real meaning.” Liston v. Cty of
Riverside, 120 F.3d 965, 973 (9th Cir. 1997) (emphasis and underline added).
Search warrants issued by state courts must adhere to federal constitutional standards. A
search based upon a state warrant that is not supported by probable cause under state law is
unreasonable, even if probable cause might exist for a violation of federal law. U.S. v.
$186,416.00 in U.S. Currency, 590 F.3d 942, 948 (9th Cir. 2010). When state law enforcement
officers charged with investigating violations of state law seek a search warrant from a state
court, the warrant must establish probable cause for a violation of state criminal law and the
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failure to establish probable cause for a state law violation renders the warrant invalid and the
search illegal under the Fourth Amendment. Id.
1. California law allows collectives to operate as storefront dispensaries.
In 1996, the voters of California approved Proposition 215, the Compassionate Use Act
(“CUA”), codified at Health and Safety Code § 11362.5. The CUA provides limited exceptions
to California state law prohibiting marijuana use and possession when marijuana is used for
medical reasons. In 2004, the California legislature approved Health & Safety Code §
11362.775, part of the Medical Marijuana Program Act (“MMPA”). Under the MMPA, the
legislature created limited state criminal liability exceptions for cooperative cultivation,
transportation and distribution of medical marijuana and explained that the law
would,“[E]nhance the access of patients and caregivers to medical marijuana through collective,
cooperative cultivation projects.” Senate Bill 420 § 1(b)(3) (enacted 2003, effective 1/1/2004).
California Health & Safety Code § 11362.768(e) expressly recognizes “a medical
marijuana cooperative, collective, dispensary” that “distribute medical marijuana and that has
a storefront.” The Attorney General’s Guidelines on medical marijuana similarly provide that a
“properly organized and operated collective or cooperative that dispenses medical marijuana
through a storefront may be lawful under California law.” The MMPA provides that “qualified
patients” and “the designated primary caregivers of qualified patients” who “associate within the
State of California in order collectively or cooperatively to cultivate marijuana for medical
purposes, shall not, solely on the basis of that fact, be subject to state criminal sanctions …”
The MMPA expressly contemplates that a medical marijuana cooperative, collective,
dispensary, operator, establishment, or provider may have a storefront. People v. Hochanadel,
176 Cal.App.4th 997, 1018 (2009). Likewise, the MMPA’s reference to a “storefront or mobile
retail outlet” make it abundantly clear that the medical marijuana cooperatives or collectives
authorized by § 11362.775 are permitted by state law to perform a dispensary function. “As the
Attorney General observes in the Guidelines, a properly organized and operated collective or
cooperative that dispenses medical marijuana through a storefront may be lawful under
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California law.’ We perceive no reason at this juncture to disagree with the Attorney General’s
assessment.” Qualified Patients Assn. v. City of Anaheim, 187 Cal.App.4th 734, 752 (2010). If
“a storefront” business is properly operating as a “collective” it is immune from prosecution and
no “law, prohibits cooperatives and collectives from maintaining places of business.”
Hochanadel, 176 Cal.App.4th at 1018. The “collectives and cooperatives will dispense
marijuana and that there will be an exchange of cash consideration. . . The MMPA permits retail
dispensaries.” People v. Jackson, 210 Cal.App.4th 525, 537 (2012).
2. The warrant affidavits omit material information and are deceptive.
To invalidate a warrant on grounds of deception or omission, a “substantial showing” that
a search warrant affiant “omitted . . . information with the deliberate intention to create a false
impression or with reckless disregard for the truth” must be shown. People v. Scott, 52 Cal.4th
452 (2011); see also People v. Maestas, 204 Cal.App.3d 1208, 1216 (1988). 204 Cal.App.3d
1208, 1216. In this case, Long Beach first began obtaining warrants around April, 2012 after
conducting multiple warrantless raids for more than a year. While it still conducts raids without
warrants, the warrants and affidavits the Plaintiffs were able to obtain for raids conducted in
2012 and 2013 appear to be copied from a template. On the first page of the warrant, the reader
learns that the officer expects to find:
“Marijuana and paraphernalia commonly associated with the smuggling, sales, packaging, storage and preparation of marijuana, consisting in part of and including, but not limited to: packages of controlled substance, packing materials, scales, and other weighing devices, chemicals, cutting agents and concealment devices. Other controlled substances, such as heroin, methamphetamine, cocaine/cocaine base, concentrated cannabis, GHB, hallucinogens ..."” SBE 3-54, Warr. Affidavit, p.165, ll.15-23.
To the reader, it appears the officer writing the warrant is expecting to find a myriad of illegal
drugs including “marijuana, cocaine, heroin, methamphetamine and other contraband.” The
warrants all include “firearms and weapons including rifles, shotguns, handguns” and
ammunition as objects officers hope to find.
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After the generalized listings of drug contraband, firearms, smuggling devices, cutting
agents, chemicals, computers, papers, and other items officers expect to find, the affidavit part of
the warrant begins. In the affidavit, the reader learns, in a section titled “Statement of
Expertise,” that the police officer specializes in narcotics and drug trafficking and has been
assigned to the “Narcotics Investigation Section.” SBE 3-54, Warr. Affidavit, p.168, ll.4-6. The
officer describes training and experience in the area of narcotics and swears, “Your affiant has
attended advanced officer training at the Long Beach Police Department on the structure of sales
of marijuana, cocaine, heroin, methamphetamine and other contraband in the County of Los
Angeles.” Id., p.168, ll.11-14 (note marijuana is listed with cocaine and heroin and is described
as contraband). The warrant template then continues:
“Your affiant conducted a narcotics investigation at [address] in the City of Long Beach. This location is a Medical Marijuana Dispensary that is operating illegally within the City of Long Beach in violation of Long Beach Municipal Code 5.89.030(B).” SBE 3-54, Warr. Affidavit, p.169, ll.4-7 (emphasis added).
In the next part of the warrant, the officer then explains that an “R.C.I.” (Reliable Confidential
Informant) who is a medical marijuana patient, went into the collective, was verified, and
purchased medical cannabis. When describing the R.C.I., the template simply concludes the
anonymous informant has been used by the officer previously and is “reliable.” SBE 2-31,
Warr. Affidavit, pp.110-111. Next, the officer states:
“Based on the above investigation I determined this location is operating as a Medical Marijuana Dispensary in violation of Long Beach Municipal Code 5.89.030(B).” SBE 3-54, Warr. Affidavit, p.170, ll.5-6 (emphasis added).
Given section 5.89.030(B) is a misdemeanor, it would seem that the officer’s investigation was
complete at this point -- a misdemeanor citation could be issued to the collective and the officer
could move on to another case. However, the officer instead continues by concluding there is
probable cause to believe that narcotics-trafficking is taking place and a warrant is necessary:
“Therefore, based on my training and experience, as well as the above articulated observations and information in this affidavit, the location listed on page 2 is currently being utilized to store or traffic narcotics. I believe that when this warrant is executed at the location I will find evidence of controlled substances distribution.
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Therefore, I pray a search warrant be issued for this address, for the suspect, and for the vehicles at the location.” SBE 3-54, Warr. Affidavit, p.170, ll.7-12 (emphasis added).
The warrants at issue, with the exception of the two (2) night warrants obtained to search the
homes of Chris and Demitri Woodard (SBE 2-33, Night Warr. for Woodard Home in Corona,
pp.113-17), use the above template with small variances. For instance, the warrant obtained by
officer David Strohman in October, 2012 for a search conducted at 745 E. 4th Street (SBE 3-54,
Search Warr. and Affidavit, pp. 164-170) is virtually identical to the warrant obtained by officer
David De Stefano in April, 2013 for a search conducted at 2201 E. Anaheim Street (SBE 5-84,
Search Warr. and Affidavit, pp. 290-294).
The following information does not appear in any of the warrants:
1) The City previously raided the location multiple times without ever finding methamphetamine, heroin, cocaine, contraband marijuana, or any other controlled substance as listed in warrant;
2) LBMC § 5.89.030(B) is a non-violent misdemeanor;
3) Facts supporting and describing the credibility of the R.C.I. used by the officer (conclusory statements about a confidential informant’s reliability are insufficient. People v. Kurland 28 Cal.3d 376, 392 (1980) (“[a]n affiant's conclusory opinions of reliability or credibility are not enough ...”);
4) The Los Angeles District Attorney had repeatedly, following all of the prior raids, refused to prosecute for “narcotics” or “drug trafficking”;
5) Prior to obtaining warrants for the Plaintiffs, the police had searched the location without a warrant and without exigent circumstances;
6) The location being searched is the address of a collective of patients that is a party in civil litigation brought by or against the City of Long Beach;
7) The patient collective at the location is a party in nuisance abatement litigation initiated by the City of Long Beach (Long Beach v. Naturecann; Long Beach v. 562 Collective);
8) Demurrers to injunctive relief claims in nuisance abatement litigation commenced by the City against collectives were sustained without leave to amend (Long Beach v. 562 Collective; Long Beach v. 1 A.M. Collective);
9) There is ongoing litigation challenging the validity of LBMC Chap. 5.89;
10) The officer’s background and training in the area of state medical marijuana law;
11) Sufficient factual allegations supporting why a search is necessary under § 5.89.030(B) after multiple prior searches failed to yield any evidence of or charges filed for the
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conclusion set forth in officer affidavits that there is probable cause to believe the location is “currently being utilized to store or traffic narcotics.” SBE 3-54, Warr. Affidavit, p.170 ll.7-12.
By omitting this information, the warrants do not tell the “total story” (Liston,120 F.3d at 973).
Rather, the affidavits are conclusory, in “boilerplate” form, and are, in almost every case,
double-spaced and less than three (3) pages long. SBE 3-54, Warr. Affidavit, p.168-170 (two
and a half pages long, double-spaced); SBE 4-81, Warr. Affidavit, p.279 (three pages long,
double-spaced). These types of conclusory warrants are insufficient. Barnes v. Texas, 380 U.S.
253 (1965). The conclusory and insufficient nature of the warrants at issue in this case is
demonstrated not only by the brevity of the affidavits, but also by the repeated use by officers of
the same template for multiple raids conducted at different locations over a long period.
While almost all of the warrants based on the template appear to identify the search
location as a medical marijuana collective, none of the warrants or related affidavits explain that
medical marijuana is legal in California. SBE 3-54; SBE 3-55; SBE 4-81; SBE 2-31. The
officers also neglect to tell the magistrate that, in multiple searches conducted previously, there
were never any “drug trafficking” or “narcotics” charges filed and none of the “contraband”
listed in the warrants was ever found (i.e. methamphetamine, cocaine, heroin, contraband (rather
than medical) marijuana, etc. [there is a difference in California between “contraband marijuana”
and “medical marijuana.”).
Likewise, the officers fail to provide any factual basis supporting the reliability of the
confidential informants they refer to in their affidavits. The warrant affidavits that include an
“R.C.I. investigation” provide only that, “This RCI has worked with me on several
investigations and has always been found to be reliable.” SBE 3-54, Warr. Affidavit, p. 169,
ll.19-20. A simple assertion is inadequate to establish informant reliability when the affidavit
contains no facts in support of the assertion. See, e.g., People v. Kurland 28 Cal.3d 376, 392
(1980). (“[a]n affiant's conclusory opinions of reliability or credibility are not enough ...”).
Things the affiant “hopes to find,” but for which there is no articulable reason to believe
will be found, should not be listed. However, property that there is a “fair probability” would be
found, given the nature of the offense, may be listed despite the lack of any specific evidence
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that such an item is in fact in the place to be searched. See People v. Ulloa, 101 Cal.App.4th
1000 (2002). After conducting multiple warrantless searches of the Plaintiffs in 2011, officers
knew there was no probability they would find “methamphetamine” or “heroin” or “cocaine” at
the search locations when they began obtaining warrants in mid-2012. Certainly after those
warrantless raids officers knew they would not find evidence of “drug trafficking” or “narcotics”
violations. Indeed, the affiants state they are seeking to enforce LBMC § 5.89.030(B) – not state
drug trafficking or narcotics laws. It follows that continuing to list “methamphetamine,”
“cocaine,” “heroin,” and contraband marijuana in the warrants was improper because officers
had no basis to believe any of those items would be found. SBE 3-55; SBE 4-81; SBE 2-31;
SBE 3-54, pp.164-167. Officers also had no basis for listing “firearms.” There were never any
firearms found or used by patients during the many previously conducted warrantless searches
with the exception of firearms properly in the possession of several licensed security guards with
permits to carry those weapons.
In fact, the City has already revealed what it is really trying to do through the violent
raids, destruction of property, and the “strong-arm” tactics described by Judge Madden:
“Today, October 10, 2012, the Long Beach Police Department conducted an enforcement operation and served search warrants … that shut down seven marijuana dispensaries located throughout the City of Long Beach.” SBE 4-72, LB Police Dept. Press Release, p.231, ¶1.
By consistently including items they knew they had little or no basis for ever believing
they would find, officers acted with “reckless disregard for the truth” (Scott, supra) and in an
effort to create a “false impression” that they were investigating “drug trafficking” and felony
narcotics violations. Indeed, the City, as is shown by its Police Department Press Release, has
put the officers up to this task not to investigate narcotics violations – but to shut-down the
collectives through “strong-arm” tactics. Considering officers include the words “smuggling,”
“cutting agents,” and “concealment devices” (SBE 3-54, Warr. Affidavit, p.165, ll.15-23) in
every warrant, the false impression intended was, indeed, conveyed. Essentially, the officers
“baited” the magistrate with a search warrant that describes as its object things associated with
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narcotics trafficking. See SBE 3-54, Search Warr., pp.164-167; then compare SBE 3-54, Warr.
Affidavit, p.168-170. Thereafter and only at the beginning of the affidavit portion of the warrant,
the swearing officer refers to LBMC Chap. 5.89 (SBE 3-54, Warr. Affidavit, p.169, ll.4-6).
After reciting the ordinance, the affiant then switches back to describing “narcotics,”
“methamphetamine,” “heroin,” and “drug trafficking” (SBE 3-54, Warr. Affidavit, p.168-170)
and then concludes there is probable cause to believe that the search location is “currently
being utilized to store or traffic narcotics.” SBE 3-54, Warr. Affidavit, p.170 ll.7-12. That
conclusion is false -- the officer knows from prior searches that there has never been anything
found to suggest that the location is storing or trafficking narcotics in violation of state law.
Next, while the warrant affidavits explain to the magistrate that “your affiant” has been
trained in narcotics trafficking, none of the affidavits show the affiant has any training or
background in the area of state medical marijuana law. SBE 3-54, Warr. Affidavit, p.168, ll.6-
19. It is very likely the officers have little or no training in this area since the warrant affidavits
demonstrate they do not understand that the existence of a medical marijuana collective
operating in conformance with state law cannot yield state “drug trafficking” or “narcotics”
violations. A medical marijuana dispensary operating in full conformance with state law by
definition cannot be engaged in drug trafficking under state law. U.S. v. $186,416.00, supra.
If a dispensary is engaged in activities involving “methamphetamine” or “heroin,” it is not a
medical marijuana dispensary. To illustrate, an illegal marijuana distribution entity, like a
methamphetamine lab, does not violate LBMC Chap. 5.89.030(b) because only state law
compliant dispensaries are subject to section 5.89.030(B).
It is clear why officers consistently use of the word “marijuana” without the word
“medical” in their warrants – the City wants them to mislead the reader. Relying on long-
standing marijuana prohibitions and stereotypes, they embed the word “marijuana” with the
word “contraband” in enumerations of illicit drugs. SBE 3-54, Warr. Affidavit, p.165, ll.15-23.
The officers fail to inform the magistrate that collectives can be cited for alleged violation of
§5.89.030(B) the same way 99.9% of municipal code violators are – with paper citations
requiring their appearance in court. In fact, LBMC § 5.89.030(B) is not a narcotics law – but
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rather it is a municipal ordinance that prohibits all medical cannabis dispensaries, collectives,
and cultivation sites in the City of Long Beach. A determination of whether that ordinance is
being violated can easily be made by officers without a search warrant and certainly without
assault rifles, battering rams, and hoards of officers. Those assault rifles, battering rams, and
hoards of officers are meant to scare the “living hell” out of patients to get them to shut-down.
The officers’ conclusory affidavits do not tell the “total story” and instead are rife with
words and phrases that mislead the magistrate. The result of this chicanery is the conclusion
repeated in all of the various warrant affidavits that the officers have probable cause to believe
narcotics-trafficking is taking place at the search locations. A reasonable officer in California
knows that medical marijuana dispensing cannot be narcotics-trafficking under state law without
some evidence the dispensary is not complying with the CUA or MMPA. U.S. v. $186,416.00,
supra. The officer-affiants in this case were not operating in “good faith” because they knew
there could be no “narcotics trafficking” after raiding over and over with the regular result of
their efforts being refusal by the District Attorney to charge the patients. It follows that the
probable cause cited by the officers –narcotics trafficking and storage (SBE 3-54, Warr.
Affidavit, p.170 ll.7-12. ) – was not present in any of the warrants in this case.
E. LONG BEACH HAS RETALIATED AGAINST THE PLAINTIFFS.
A retaliation claim is an inherently unique cause of action that arises when an individual
engages in constitutionally protected speech and is, as a result, retaliated against by a
government entity or actor. See Jenkins v. Bd. of Educ. 463 F. Supp. 2d 747, 756 (S.D. Ohio
2006), aff’d in part, rev’d in part sub nom. Jenkins v. Rock Hill Local Sch. Dist. 513 F.3d 58 (6th
Cir. 2008). Unlike typical First Amendment claims, retaliation claims do not involve the direct
prohibition of speech, but rather are constitutional violations which “may arise from the
deterrent, or ‘chilling,’ effect of governmental regulations that fall short of a direct prohibition
against the exercise of First Amendment rights.” Laird v. Tatum, 408 U.S. 1, 11 (1972). An
individual may bring a retaliation claim when law enforcement and city officials take action
against that person because of their political speech activities or because the person seeks redress
for grievances. See, e.g., Mendocino Environmental Center v. Mendocino County, 192 F.3d
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1283 (9th Cir. 1999) (police officers sued for engaging in conspiracy to falsely accuse political
activists of a crime in an effort to inhibit their political activities).
In recognizing one’s protected interest in challenging government officials’ actions, the
Ninth Circuit held “[i]t is clear that ‘[s]tate action designed to retaliate against and chill political
expression strikes at the heart of the First Amendment.’” Soranno’s Gasco, Inc. v. Morgan, 874
F.2d 1310, 1314 (9th Cir. 1989). A First Amendment violation occurs if “by his actions [a public
official] deterred or chilled [] political speech and such deterrence was a substantial or
motivating factor in [the public official’s] conduct.” Sloman v. Tadlock, 21 F.3d 1462, 1469 (9th
Cir. 1994). Under Sloman, only a demonstration that a public official, officer, or employee
“intended to interfere” with First Amendment rights is necessary. Mendocino Env’l Ctr. v.
Mendocino County, 14 F.3d 457, 464 (9th Cir. 1993).
Attorney Matthew Pappas has represented patients, including the patient Plaintiffs in this
case, in various cases where the City of Long Beach is a party since 2010. SBE 1-5, J. Theisen
Decl. (#3), p.8, ¶5; SBE 7-115, K. Aldrich Decl. (#2), p.408, ll.8-12; SBE 7-125, S. Sandoval
Decl., p.427, ¶2. In December, 2011, Pappas applied for a business license for an office space
donated to him by a Long Beach patient group. SBE 6-102, V. Pappas Decl., p.360, ¶¶3-4.
After delaying for several months, Long Beach refused to issue Pappas a business license. SBE
6-102, V. Pappas Decl., p.362-63, ¶18; SBE 7-125, S. Sandoval Decl., pp.430, ¶14; SBE 6-103,
Letter from E. Sund Denying Bus. Lic., p.367. Despite the office being closed during the
application process and payment of all fees to the City, Pappas was repeatedly cited and charged
with misdemeanors. SBE 7-125, S. Sandoval Decl., pp.430-31, ¶15; SBE 6-104, Arrest Letter
from LB Prosecutor, p.368; SBE 6-105, Letter to M. Pappas re: Arrest Warr., p.369-70; SBE 6-
102, Paid Check for Bus. Lic., p.365; SBE 6-102, Pappas Ltr. to Carney, p.366. As a result of
the license denial, Pappas was forced to leave Long Beach. Various other retaliatory actions are
evidenced by the exhibits included with Plaintiffs’ motion.
In addition to the retaliation against Pappas and the Plaintiffs, in late-2012 a federal court
in Los Angeles issued an injunction in the case El Dorado Bar & Grill v. City of Long Beach,
CV-07294 PA-AGR (2012); RJN Ex. 5. In the El Dorado case, the court noted:
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“Indeed, Plaintiff alleges that Defendants’ decision to deny Plaintiff’s application and cite Plaintiff for offering live entertainment was based on unrelated legal action brought by Jon Storms – a medical marijuana distributor – against the City. It is precisely this concern – that a state or city official will employ the discretion granted to them by a licensing statute to retaliate against an applicant for engaging in protected First Amendment activity – that undergirds the Supreme Court’s jurisprudence in facial challenges to licensing schemes.” Id., Order Granting Injunction, Dct. #20, 10/1/2012, p.9 of 10 at fn. 4 (RJN Ex. 5) (emphasis and underline added.)
F. LONG BEACH OFFICERS HAVE ATTEMPTED TO COVER-UP THEIR ILLEGAL ACTIONS BY DESTROYING VIDEO EQUIPMENT AND THREATENING WITNESSES.
When it raids the Plaintiff collectives, Long Beach disables and destroys video
surveillance equipment at the start of the raids. SBE 7-116, Photos of 10-11-2012 Raid, pp.414
(showing destruction of video equipment by officer); SBE 1-11, D. Brooks Decl., p.49. The
disabling and destruction of video equipment and cameras is part of an ongoing policy and
practice that takes place in every raid where cameras are present. SBE 1-14, Photos of 6-19-
2012 Raid, p.55 (smashing of video cameras); SBE 7-116, Photos of 10-11-2012 Raid, pp.414
(destruction of video equipment by officer). Had the patient group that was raided on June 19,
2012 not have had off-site recording of surveillance video, there would have been no evidence of
the attack on Dorian Brooks by police that day. Indeed, the only reason officers would disable
and destroy the recording systems is to ensure there is no record of their misconduct.
Officers have also threatened people who are taking pictures or videos of raids. During
the warrantless raid of the Naturecann collective on March 21, 2012, Officer Strohman
threatened a person hundreds of feet from the raid who was videotaping the incident using the
camera on his laptop computer:
“Officer Strohman came up to me and said, ‘hey buddy, what are you doing?’ I politely told him I was taking video footage but before I could complete my sentence, he had reached toward me with his hand toward my laptop. His hand was covering the laptop. I could not move back and was pressed against the wall. He forced the lid of the laptop down and the laptop slid as he pressed it against me while holding me to the wall. Another officer [had taken] the paper bag he was holding. While holding his hand over the edge of the laptop and holding me against the wall, he said, ‘you're not going to tape anything.’ ... He had moved so that his head was right next to my ear and said, ‘I don’t fucking care who you
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work for, we’re the police, we can do whatever we want. If I see you taping again, I’ll kick your ass.’ He then pushed me to the ground.” SBE 2-27, S. Pappas Decl., pp.94-95, ¶14.
These types of threats as well as the disabling and destruction of collective surveillance
equipment again show the City is engaged in thwarting peoples’ constitutional rights in an effort
to hide misbehavior.
G. THE INVASIVE AND RAMPANT PATTERN OF VIOLATIONS BY LONG BEACH REQUIRES INTERVENTION BY THE COURT.
This federal court’s equitable powers are broad: “breadth and flexibility are inherent in
equitable remedies.” Brown v. Plata, 131 S. Ct. 1910, 1944 (2011); see also Swann v. Charlotte-
Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971) (“Once a right and a violation have been
shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for
breadth and flexibility are inherent in equitable remedies.”). When discharging their
“quintessential[] role” of preventing constitutional violations, federal courts have required
municipal agencies to alter or augment the administrative processes causing those violations.
NYS. Ass’n for Retarded Children, Inc. v. Carey, 551 F.Supp. 1165, 1192-94 (E.D.N.Y. 1982)
(issuing injunction in disability discrimination lawsuit that empowered a court-appointed
monitor to, inter alia, hire assistants with experience in the relevant field, inspect defendants’
records, and require defendants to submit necessary reports), aff’d, 706 F.2d 956 (2d Cir. 1983);
Inmates of the Attica Corr. Facility v. Rockefeller, 453 F.2d 12, 25 (2d Cir. 1971) (holding that
district court erred in not granting a preliminary injunction against guard brutality, and
remanding to consider appointment of federal monitors).
In International Molders & Allied Workers v. Nelson, 799 F.2d 547 (9th Cir. 1986) the
court upheld a preliminary injunction prohibiting the Immigration and Naturalization Service
from conducting factory searches absent either voluntary employer consent, unprovoked exigent
circumstances or a search warrant identifying specific persons suspected of being illegal aliens.
In that case the Ninth Circuit found the record supported the district court’s finding of an
“evident systematic policy and practice of fourth amendment violations” by INS. “The district
court made an explicit finding that, absent an injunction, ‘plaintiffs are quite likely to suffer
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irreparable harm’ from continued fourth amendment violations by INS. ‘[P]roof of past injury,
especially of a repetitive character, is not immaterial to the issue of likely recurrence.’ LaDuke v.
Nelson, 762 F.2d 1318, 1324 n. 8 (9th Cir. 1985), amended on other grounds, 796 F.2d 309 (9th
Cir.1986).” International, 799 F.2d at 551. The City of Long Beach has engaged in a
“systematic policy and practice of fourth amendment violations” by means of warrantless
searches and other illegal searches with warrants obtained by judicial deception. Plaintiffs have
presented evidence of this pattern in approximately 100 raids that began being conducted in
2011, continuing to raids conducted just days ago (early-May, 2013).
In addition, principles of federalism do not preclude a federal court from ordering
changes to a municipality’s practices when those practices cause pervasive deprivations of
constitutional rights. See Todaro v. Ward, 565 F.2d 48, 53 (2d Cir. 1977) (“[A] policy of
judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims
whether arising in a federal or state institution.”) (citations and internal quotation marks
omitted). Federal courts hold a “wide range of discretion in framing an injunction in terms it
deems reasonable to prevent wrongful conduct,” Forschner Grp., Inc. v. Arrow Trading Co.,
Inc., 124 F.3d 402, 406 (2d Cir. 1997), and therefore may “exert [] equitable power to prevent
repetition of the violation ... by commanding measures that safeguard against recurrence.” Ruiz
v. Estelle, 679 F.2d 1115, 1155-56 (5th Cir. 1982); Milliken v. Bradley, 433 U.S. 267 (1977).
Plaintiffs have brought their claims under 42 U.S.C. § 1983 alleging multiple and
continuing violations of their Fourth Amendment rights. As the Supreme Court established in
Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), local governing
bodies can be held liable either on the basis of formally approved policy or on the basis of
“customs” or “usages.” Id. at 690–91 (quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 167–
68 (1970)). Later cases have “considerably broadened the concept of official municipal action.”
Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 125 (2d Cir. 2004). In order to have
recourse against a municipality or other local government under section 1983, plaintiffs must
show “that ‘action pursuant to official municipal policy’ caused the alleged constitutional
injury.” Cash v. County of Erie, 654 F.3d 324, 333 (2d Cir. 2011) quoting Monell, 436 U.S. at
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691). In general, “[o]fficial municipal policy includes the decisions of a government’s
lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as
to practically have the force of law.” Connick v. Thompson, 131 S.Ct. 1350, 1359, 179 L.Ed.2d
41 (2011) (citing Monell, 436 U.S. at 694; Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986).
Here, the actions of Long Beach officers have continued since at least February, 2011.
When the press learned about the Dorian Brooks incident, the video of officers showing he had
fully complied with officers followed by images of officers walking on him and then stepping
intentionally on his neck were viewed by hundreds of thousands of people on YouTube as well
as during local and national television news reports. Transcripts from a Long Beach City
Council meeting show that the entire city council was made aware of the excessive force during
that public meeting held on July 5, 2012:
“COUNCILWOMAN GABELICH (8th Dist.): And, you know, what I saw -- and I can say this -- because I'm going to say this publically -- I saw the YouTube video [raid of medical cannabis collective by LB Police on 6-19-2012] last night -- it's not a secret - the action that was taken was very offensive to me ...” SBE 6-109, Excerpts from July 5, 2012 Meeting of LB City Council, p.382.
Evidence provided by the Plaintiffs in the exhibits included with this motion shows the Long
Beach police Internal Affairs section had been notified multiple times of excessive force and
improper warrantless actions by police.
Use of excessive force by officers in Long Beach is nothing new. In May 2009, an
LBPD officer shot an unarmed man visiting from New Jersey three times because the man put
up his arms to protect himself after the officer hit him with a baton. In that case, a jury awarded
substantial damages based on excessive use of force. In May, 2011, LBPD officers riddled a
house with more than 30-bullets, several of which hit and seriously injured a man who was in
the house with his fiancè. In December, 2010, Long Beach officers shot and killed 35-year-old
Doug Zerby who was armed only with a hose nozzle. Members of Zerby’s family were recently
awarded $6.5 million in a case brought against the City and several police officers. In
November, 2012, Long Beach agreed to pay $211,000.00 in an excessive force case brought
after officers shot a 19-year-old girl with a Taser that lodged in her neck.
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In this case, the actions of officers that violate the Fourth Amendment are so pervasive,
persistent, and widespread that they have the practical effect of being the law under Monell. The
City’s pattern and practice of condoning, allowing, and even encouraging officers to violate the
Fourth Amendment is shown by the voluminous exhibits provided by Plaintiffs with this motion.
It is also shown by multiple jury-awards finding against the City and awarding substantial
damages to victims. The breadth of evidence makes clear injunctive relief is necessary. With
raids occurring multiple times per week and officers waiving around assault rifles or guns every
time, the situation is akin to that of a “powder-keg” in a burning building.
H. PLAINTIFFS SATISFY THE FOUR REQUIREMENTS FOR INJUNCTIVE RELIEF.
As the Plaintiffs have shown, they are, without doubt, going to again be subjected to the
excessive force raids. The Plaintiffs are therefore “likely to be deprived of [their] constitutional
rights in the future by the acts [they] seek [] to have enjoined,” a showing that satisfies the first
and second requirements for an injunction. Equity heavily favors ordering significant changes to
Defendants’ raid policies and practices. It is difficult to imagine a burden on the Defendants that
could outweigh the “potentially dire and long-lasting consequences” of their unconstitutional
practices on the individual victims in this case and the community at large. Ass’n of Surrogates
v. New York, 966 F.2d 75, 79 (2d Cir. 1992). The remedies sought by Plaintiffs imposes
minimal burdens on the City and its officers. Those burdens are outweighed by the public
interest in protecting citizens’ fundamental constitutional rights and by the savings to the City in
future litigation costs which will result from the cessation of unconstitutional raid actions.
CONCLUSION
For all of the foregoing reasons, Plaintiffs’ application for a Temporary Restraining
Order should be GRANTED. Their concurrent request for an Order to Show Cause re:
Preliminary injunction should likewise be GRANTED.
DATED: May 7, 2013 _________________________________ Matthew Pappas, Attorney for Plaintiffs