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DISTRICT COURT, COUNTY OF LARIMER, COLORADO 201 La Porte Avenue, Suite 100 Fort Collins, Colorado 80521-2761 970-498-6100 __________________________________________ KALEB YOUNG, an individual, Plaintiff, v. LARIMER COUNTY SHERIFF’S OFFICE, a local governmental entity; SHERIFF JUSTIN SMITH, in his official capacity as LARIMER COUNTY SHERIFF; DETECTIVE PETE MESECHER, in his individual capacities, Defendants. __________________________________________ Attorneys for Plaintiffs: Robert J. Corry, Jr. #32705 Travis B. Simpson #43858 600 Seventeenth Street Suite 2800 South Tower Denver, Colorado 80202 303-634-2244 telephone 720-420-9084 facsimile Robert.Corry@comcast.net travisbsimpson@gmail.com

COURT USE ONLY _______________________

Case Number: 12CV1997 Div: 4A Ctrm:

RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Plaintiff Kaleb Young, through undersigned counsel, hereby respectfully

submits his Response to Defendants’ Motion for Summary Judgment, thereby

requesting that the Court deny Defendants’ Motion for failure to establish that

there is no genuine issue as to any material fact and that Defendants are entitled to

a judgment as a matter of law, and in support thereof, state as follows;

DATE FILED: April 3, 2013 0:15 PM FILING ID: CD08DA5E

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I. Nature of the Case

Kaleb Young is a Colorado resident who suffers from debilitating medical

conditions. Mr. Young’s Colorado-licensed physician recommended that he treat

the symptoms of his medical conditions through the use of medical marijuana. Mr.

Young was cultivating his own medical marijuana on September 22, 2010.

Furthermore, on September 22, 2010, Mr. Young was also cultivating medical

marijuana for numerous other Colorado medical marijuana patients for which he

was a primary caregiver pursuant to Colorado Constitution Article XVIII § 14.

On September 22, 2010, officers of the Larimer County Sheriff’s Office,

including Defendant Pete Mesecher (“Mesecher”), without checking with the

Colorado Department of Health and Environment Medical Marijuana Registry to

determine if the marijuana they suspected was being cultivated at Plaintiff’s

residence was medical marijuana, executed a search warrant on Plaintiff’s two

residences in unincorporated Larimer County. During the search, officers seized

42 live medical marijuana plants, raw medical marijuana, medical marijuana

ingestion implements and medical marijuana cultivation equipment. The 42

medical marijuana plants were cut at the base of the stem, leaving the dirt and

roots in the containers. The plants (consisting of the cut off stems and leaves) were

placed in plastic bags and booked into evidence at the Larimer County Sheriff’s

Office.

Plaintiff was charged with Cultivation of Marijuana, C.R.S. §18-18-

406(7.5)(c), Possession with Intent to Manufacture or Distribute Marijuana—Less

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than Five Pounds, C.R.S. §18-18-406(6)(b)(I), and (III)(A), and Possession of

Marijuana—More than Twelve Ounces, C.R.S. §18-18-406(4)(c). Plaintiff raised

the affirmative defense of Medical Use of Marijuana by Persons Suffering from

Debilitating Medical Conditions, Colorado Constitution Article XVIII, Section

14(4)(b) as well as other defenses related to the medical use of marijuana.

Following a jury trial on November 23, 2011, Plaintiff was acquitted of all

charges based on his affirmative defense. As a result of the acquittal, all items

seized by Sheriff’s officers were returned to Plaintiff on December 2, 2011,

including the dried and withered stems and leaves of the 42 medical marijuana

plants. Upon return of his damaged property, Plaintiff suffered damages due to

Defendants’ failure to maintain the plants pursuant to Colorado Constitution Art.

XVIII § 14(2)(e).

Plaintiff brings this case to recover the value of the 42 medical marijuana

plants destroyed while in the possession and custody of the Larimer County

Sheriff’s Office.

II. Standard for Summary Judgment

Summary Judgment is a "drastic remedy" to be granted only on a clear

showing that there is no genuine issue of material fact and that the moving party is

entitled to judgment as a matter of law. KN Energy, Inc. v. Great Western Sugar

Co., 698 P.2d 769, 776 (Colo. 1985). The movant has the burden of establishing

the absence of triable issues of fact. Churchey v. Adolph Coors Co., 759 P.2d

1336, 1340 (Colo. 1988), and the non-movant "must receive the benefit of

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all favorable inferences that may be reasonably drawn from the undisputed facts,"

Mancuso v. United Bank of Pueblo, 818 P.2d 732, 736 (Colo. 1991). An order

granting summary judgment is reviewed de novo. Aspen Wilderness Workshop,

Inc. v. Colorado Water Conservation Bd., 901 P.2d 1251, 1256 (Colo. 1995). An

order denying summary judgment is interlocutory in nature and not subject to

review. Manuel v. Fort Collins Newspapers, Inc., 631 P.2d 1114, 1116-17

(Colo . 1981).

Summary judgment is proper only when the pleadings, affidavits,

depositions, or admissions establish that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law.

C.R.C.P. 56(c). The moving party has the burden to establish that no genuine issue

of material fact exists, and any doubt should be resolved in favor of the

nonmoving party. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation

Bd., 901 P.2d 1251, 1256 (Colo.1995).

III. Genuine Issues as to Material Facts

Defendants claim, through the factual assertions in their pleadings and

statements and admissions made by the Defendants and Plaintiffs during the

course of the limited discovery conducted in this action, that there is no genuine

issue as to the facts. However, the interpretations and the conclusions presented in

the following facts support the Plaintiffs’ claims, not the Defendants.

1. Defendants claim that “[b]ased on information available to him,

Mesecher believed marijuana was being grown at these residences in violation of

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Colorado criminal statutes.” (Defendant’s Brief in Support of Motion for

Summary Judgment). However, Mesecher did not check with the Colorado

Department of Health and Environment’s Confidential Medical Marijuana

Registry (“Registry”) to determine if Kaleb Young was a medical marijuana

patient. (Affidavit of Kaleb Young, Para. 1).

2. The Registry is a constitutionally-created database that exists

specifically to allow law enforcement officers to determine if a suspect is

authorized to possess or cultivate medical marijuana before the officer effectuates

an arrest or search and seizure;

3) The state health agency shall create and maintain a confidential registry of patients who have applied for and are entitled to receive a registry identification card according to the criteria set forth in this subsection, effective June 1, 1999. (a) No person shall be permitted to gain access to any information about patients in the state health agency's confidential registry, or any information otherwise maintained by the state health agency about physicians and primary care-givers, except for authorized employees of the state health agency in the course of their official duties and authorized employees of state or local law enforcement agencies which have stopped or arrested a person who claims to be engaged in the medical use of marijuana and in possession of a registry identification card or its functional equivalent, pursuant to paragraph (e) of this subsection (3). Authorized employees of state or local law enforcement agencies shall be granted access to the information contained within the state health agency's confidential registry only for the purpose of verifying that an individual who has presented a registry identification card to a state or local law enforcement official is lawfully in possession of such card. Colo. Consti. Art. XVIII § 14(3)(a).

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3. The information establishing that Plaintiff was a medical marijuana

patient and caregiver was available to Mesecher before he drafted affidavits in

support of search warrants on September 14, 2010 for properties being rented to

Young at 12669 North County Road 5, Wellington, CO and 5228 East Harmony

Road, Timnath, CO. (Affidavit of Kaleb Young, Para. 2).

4. With the exclusion of the available information from the Registry

showing that Plaintiff was a medical marijuana patient and caregiver, Larimer

County Court Judge Cynthia Hartman found probable cause sufficient to issue

Search Warrants for Young’s County Road 5 and Harmony Road properties on

September 14, 2010. (Affidavit of Pete Mesecher, Para. 6).

5. On September 22, 2010, the search warrants were executed.

(Complaint, Paragraph 8).

6. Upon execution of the search warrants, medical marijuana

documentation was found in Plaintiff’s residence. (Affidavit of Kaleb Young,

Para. 3). Specifically, the following documentation was recovered by Larimer

County Sheriff’s Office agents and placed into evidence;

Photocopy of Medical Marijuana Registry Application Form / KALEB YOUNG Photocopy of Medical Marijuana Registry / KALEB YOUNG Photocopy of Medical Marijuana Registry Application Form / CHRIS THOMPSON Photocopy of Medical Marijuana Registry / CHRIS THOMPSON Photocopy of Colorado Identification Card / CHRISTOPHER THOMPSON Photocopy of Medical Marijuana Registry Application Form / DANIEL GURRERO Photocopy of Medical Marijuana Registry / DANIEL GURRERO Photocopy of Colorado Instruction Permit / DANIEL GURRERO Photocopy of Medical Marijuana Registry Application Form / MICHAEL

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WRIGHT (2 copies) Photocopy of Medical Marijuana Registry / MICHAEL WRIGHT (2 copies) Photocopy of Arizona Driver's License / MICHAEL WRIGHT (2 copies) Photocopy of Colorado Temporary Document Driver's License / MICHAEL WRIGHT (2 copies) Photocopy of Medical Marijuana Registry Application Form / ALFRED BARKER Photocopy of Medical Marijuana Registry / ALFRED BARKER Photocopy of Colorado Driver's License / ALFRED BARKER Photocopy of Medical Marijuana Registry Application Form / DAVID GALLEGOS Photocopy of Medical Marijuana Registry / DAVID GALLEGOS Photocopy of Colorado Driver's License / DAVID GALLEGOS Photocopy of Medical Marijuana Registry Application Form / LORENZO CASIAS Photocopy of Medical Marijuana Registry / LORENZO CASIAS Photocopy of Colorado Identification Card / LORENZO CASIAS Photocopy of Medical Marijuana Registry Application Form / GARY CAMPBELL Photocopy of Medical Marijuana Registry / GARY CAMPBELL Photocopy of Colorado Driver's License / GARY CAMPBELL Photocopy of Medical Marijuana Registry Application Form / LUIS HASSEY Photocopy of Medical Marijuana Registry / LUIS HASSEY Photocopy of Colorado Identification Card / LUIS HASSEY Photocopy of Medical Marijuana Registry Application Form / PAMELA SHAW Photocopy of Medical Marijuana Registry / PAMELA SHAW Photocopy of Colorado Driver's License / PAMELA SHAW Photocopy of Medical Marijuana Registry Application Form / VALERIE LOVATE Photocopy of Medical Marijuana Registry / VALERIE LOVATE Photocopy of Colorado Identification Card / VALERIE LOVATE Photocopy of Medical Marijuana Registry Application Form / ROBERT WHITNEY Photocopy of Medical Marijuana Registry / ROBERT WHITNEY Photocopy of Colorado Driver's License / ROBERT WHITNEY Photocopy of Medical Marijuana Registry Application Form / DAVID COLEMAN Photocopy of Medical Marijuana Registry / DAVID COLEMAN Photocopy of Colorado Driver's License / DAVID COLEMAN Photocopy of Medical Marijuana Registry Application Form / TONI PENSON-PEREZ Photocopy of Medical Marijuana Registry / TONI PENSON-PEREZ Photocopy of Colorado Driver's License / TONI PENSON-PEREZ

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Photocopy of Medical Marijuana Registry Application Form / OPHELIA GALLEGOS Photocopy of Medical Marijuana Registry / OPHELIA GALLEGOS Photocopy of Colorado Driver's License / OPHELIA GALLEGOS

(Plaintiff’s Exhibit 1).

7. After recovering this bulk of medical marijuana documentation,

Larimer County Sheriff’s Office agents cut down all 42 of the medical marijuana

plants; the plants were cut at the base of the stem, leaving the dirt and roots in the

containers. The plants (consisting of the cut off stems and leaves) were placed in

plastic bags and booked into evidence. (Affidavit of Pete Mesecher, Para. 10;

Complaint Paragraph 11).

8. Plaintiff was arrested and booked at the Larimer County Detention

Center. Upon booking, a medical marijuana application was recovered from

Plaintiff’s wallet. (Affidavit of Kaleb Young, Para. 4) After this documentation

was recovered by Mesecher and placed into evidence, Mesecher prepared an

affidavit for warrantless arrest of Young. (Plaintiff’s Exhibit 1).

9. Mesecher was the lead investigator on this case and assisted in

processing the evidence that was collected from 5228 East Harmony Road,

including medical marijuana documents, medical marijuana ingestion devices,

medical marijuana and other documents, and the evidence collected at 12669

North County Road 5, including live medical marijuana plants, grow lights,

ballasts, medical marijuana literature, medical marijuana ingestion devices, and

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processed medical marijuana. (Affidavit of Kaleb Young; Para. 5; Plaintiff’s

Exhibit 1).

10. Because the marijuana plants were cut at the bases, they wilted and

died within a matter of hours of being in the possession and control of the Larimer

County Sheriff’s Office. (Affidavit of Pete Mesecher, Para. 11).

11. While Karen Mianecki states accurately that Mr. Young returned to

and was present at the County Road 5 property on September 28, 2010, there are

no allegations in Ms. Mianecki’s affidavit that Mr. Young was aware that his

medical marijuana plants were dead and that law enforcement officers with the

Larimer County Sheriff’s Office had failed to maintain his medical marijuana

plants pursuant to their obligations under Colorado Constitution Article XVIII §

14(2)(e). (Affidavit of Karen Mianecki Exhibit). Even if Plaintiff was aware that

his plants were likely dead, he did not have the right to have his medical marijuana

plants returned to him pursuant to Colorado Constitution Article XVIII § 14(2)(e)

until after he was acquitted of criminal charges and his plants were returned to him

in a damaged state. (Affidavit of Kaleb Young, Para. 6).

12. Plaintiff was charged with Cultivation of Marijuana, C.R.S. §18-18-

406(7.5)(c), Possession with Intent to Manufacture or Distribute Marijuana—Less

than Five Pounds, C.R.S. §18-18-406(6)(b)(I), and (III)(A), and Possession of

Marijuana—More than Twelve Ounces, C.R.S. §18-18-406(4)(c). (Complaint,

Paragraph 12).

13. Plaintiff raised the affirmative defense of Medical Use of Marijuana

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by Persons Suffering from Debilitating Medical Conditions, Colorado Constitution

Article XVIII, Section 14(4)(b). (Complaint, Paragraph 13).

14. On or about April 29, 2011, Plaintiff filed a Motion to Dismiss all

criminal charges based on the immunity provided by Colorado Constitution

Article XVIII, Section 14(4)(b). (Affidavit of Kaleb Young, Para. 7).

15. On June 7, 2011, the Court denied the Motion to Dismiss. The Court

found, “Based upon Article XVIII, Section 14 of the Colorado Constitution,

Colorado statutes and the evidence presented at the hearing, there are a number of

different scenarios under which the prosecution could claim that [Defendant

Young’s] possession and cultivation of marijuana was not legal under the medical

marijuana law. . . .” (Plaintiff’s Exhibit 2). Therefore, even at this stage of the

criminal proceedings, Plaintiff was not able to avow himself of the protections of

Colorado Constitution Article XVIII § 14(2)(e) and have his medical marijuana

plants returned to him and could not have suffered damages as a result of the

seizure and destruction of his medical marijuana plants.

16. A jury trial on the criminal charges against Plaintiff was commenced

on November 21, 2010. During the trial, the 42 marijuana plants seized on

September 22, 2010 were taken from the Sheriff’s Office to the Larimer County

Courthouse and entered into evidence. (Affidavit of Pete Mesecher, Para. 18).

17. On November 23, 2011, Plaintiff was acquitted of all charges based

on his affirmative defense of Medical Use of Marijuana by Persons Suffering from

Debilitating Medical Conditions, Colorado Constitution Article XVIII, Section

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14(4)(b). (Complaint, Paragraph 13). At this point, Plaintiff could avow himself of

the protections of Colorado Constitution Article XVIII § 14(2)(e) and have his

medical marijuana plants returned to him.

18. On November 25, 2011, the Court ordered property seized by

Larimer County Sheriff’s Office be returned to Young. (Plaintiff’s Exhibit 3).

19. On December 2, 2011, the 42 medical marijuana plants were

returned to Plaintiff by the Larimer County District Court staff. (Affidavit of

Kaleb Young, Para. 6). At this point, Plaintiff suffered significant damages

because the medical marijuana plants that were returned to him were destroyed,

dead, and useless. (Affidavit of Kaleb Young, Para. 6).

20. On June 1, 2012, Plaintiff mailed a Notice of Claim to County

Attorney, George Hass, by certified mail a Notice of Claim pursuant to the

Colorado Governmental Immunity Act (“GIA”). C.R.S. §24-10-109 et seq.

(Plaintiff’s Exhibit 4).

IV. Argument

A. Plaintiff’s Section 1983 Claim Is Not Barred By The Statute Of

Limitations.

The statute of limitations for §1983 claims is Colorado’s two-year personal

injury statute, C.R.S. 13-80-102(1)(i). Blake v. Dickason, 997 F.2d 749, 50-51

(10th Cir. 1993); Arvia v. Black, 722 F.Supp. 644 (D. Colo. 1989). Federal law

governs the determination of when a §1983 action accrues. Fratus v. DeLand, 49

F.3d 673, 675 (10th Cir.1995). A §1983 action “accrues when facts that would

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support a cause of action are or should be apparent.” Fratus v. DeLand, 49 F.3d

673, 675.

Defendants allege that Plaintiffs action accrued at the latest on September

28, 2010. However, Plaintiff’s attempts to prove his authorization to possess and

cultivate the 42 medical marijuana plants at issue in this case could not have been

fruitful until a jury acquitted him of all charges on November 23, 2011. On or

about April 29, 2011, Plaintiff filed a Motion to Dismiss all criminal charges

based on the immunity provided by Colorado Constitution Article XVIII, Section

14. (Plaintiff’s Exhibit 2). Had the Court granted this motion, Plaintiff would have

immediately been authorized under Colorado Constitution Art. XVIII § 14(2)(e) to

obtain the property seized by the Larimer County Sheriff’s Office in conjunction

with his case;

Marijuana and paraphernalia seized by state or local law enforcement officials from a patient or primary care-giver in connection with the claimed medical use of marijuana shall be returned immediately upon the determination of the district attorney or his or her designee that the patient or primary care-giver is entitled to the protection contained in this section as may be evidenced, for example, by a decision not to prosecute, the dismissal of charges, or acquittal. Colo. Consti. Art. XVIII § (14)(2)(e).

However, On June 7, 2011, the Court denied the Motion to Dismiss.

Therefore, as late as June 7, 2011, Plaintiff was not authorized under the Colorado

Constitution to have his property returned to him and, therefore, the facts that

would support a cause of action were not apparent.

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Once Plaintiff proceeded to trial and was acquitted of all charges, he was

then authorized under the Colorado Constitution Article XVIII § 14(2)(e) to have

all of his medical marijuana plants returned to him. When Plaintiff received his

dead and useless medical marijuana plants on December 2, 2011, Plaintiff was

comprised of the knowledge that law enforcements officers from the Larimer

County Sheriff’s Office had not complied with the requirements of Colorado

Constitution Article XVIII § 14(2)(e), and that he was entitled to have his medical

marijuana plants returned to him, thereby supporting a cause of action for the loss

of his property. Therefore, the two-year statute of limitations began tolling after

December 2, 2012, and Plaintiff’s § 1983 claim has been brought within the two-

year statute of limitations.

B. Plaintiff States A Section 1983 Claim For Denial Of Due Process In

Violation Of The Fourteenth Amendment.

Plaintiff’s claim for denial of due process violations of the Fourteenth

Amendment is governed by the Fourth Amendment protections against search and

seizure.

Mesecher, through his Affidavit for Search Warrant, stated the facts that he

believed supported criminal activity and grounds to search Young’s County Road

5 property and seize evidence. However, Mesecher failed to check the Registry to

determine if Plaintiff was a medical marijuana patient or caregiver and authorized

to cultivate and possess medical marijuana. The Court found Mesecher’s Affidavit

established probable cause and issued the Search Warrant due to the fact that

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Mesecher intentionally omitted information that was available to him through the

Registry that would have negated a finding of probable cause.

Mesecher’s affidavit would be devoid of probable cause absent this

omission. The Fourth Amendment to the U.S. Constitution and Colorado

Constitution Article II, Section 7 mandates an evidentiary hearing when there is a

“substantial preliminary showing” that the affiant deliberately or with “reckless

disregard for the truth” included falsehoods, misstatements, or omissions in the

warrant affidavit and these falsities were necessary to the finding of probable

cause. Franks v. Delaware, 438 U.S. 154 (1978).

Therefore, Plaintiff was entitled to notice and a hearing before his medical

marijuana plants were seized and destroyed. Plaintiff was not afforded all the

process he was due under the Fourth Amendment in the criminal action and his §

1983 claim pursuant to the Fourteenth Amendment stands.

C. Plaintiff States A Section 1983 Claim For Deprivation Of Liberty In

Violation Of The Fourteenth Amendment.

In §1983 cases, it is particularly important that the complaint make clear

exactly who is alleged to have done what to whom, to provide each with fair notice

as to the basis of the claims against him or her, as distinguished from collective

allegations against the state. Robbins v. Oklahoma, 519 F.3d 1242, 1249-50 (10th

Cir. 2008).

42 U.S.C. § 1983 states;

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Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress… 42 U.S.C. § 1983.

Individuals are protected from loss of liberty without due process of law

under the Fourteenth Amendment to the United States Constitution and Colorado

Constitution Article II § 25, and it is difficult to characterize an affected interest as

a "liberty" or "property" interest. State By and Through Colorado State Claims Bd.

of Div. of Risk Management v. DeFoor, 824 P.2d 783, 794 (Colo. 1992)(Chief

Justice Rovira specially concurring); See also Morgan v. Mansfield, 569 F.Supp.

710, 713 (D.Colo.1983). The Supreme Court has held that the term "liberty"

should be granted broad meaning and that it "denotes not merely freedom from

bodily restraint but also the right of the individual to contract, to engage in any of

the common occupations of life, to acquire useful knowledge, to marry, establish a

home and bring up children, to worship God according to the dictates of his own

conscience, and generally to enjoy those privileges long recognized ... as essential

to the orderly pursuit of happiness by free men." Id.; quoting Board of Regents of

State Colleges v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 2706-07, 33 L.Ed.2d 548

(1972) (citation omitted).

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Plaintiff has suffered a deprivation of his liberty interests due to

Defendants’ destruction of his medical marijuana plants because the destruction of

these plants has deprived Plaintiff of his freedom to remain free from bodily harm

stemming from the symptoms of his debilitating medical conditions for which he

used the medical marijuana he was cultivating. See Daniels v. Williams, 474 U.S.

327, 341, 106 S.Ct. 677, 679, 88 L.Ed.2d 662 (1986). Therefore, Plaintiff suffered

a deprivation of his liberty in violation of the Fourteenth Amendment to the

United States Constitution and Colorado Constitution Article II § 25.

D. Plaintiff States A Section 1983 Claim For A Taking In Violation Of

The Fifth Amendment and Colorado Constitution Art. II Section 15.

The Fifth Amendment of the United States Constitution and Colorado

Constitution Article II § 15 provides that private property shall not be taken or

damaged, for public or private use, without just compensation. Plaintiff’s medical

marijuana plants were private property seized under the Fourth Amendment as

evidence of a crime to be used in a public criminal proceeding.

It is well established that the accused in a criminal case has the right to a

public trial. Anderson v. People, 490 P.2d 47, 48, 176 Colo. 224, 226 (Colo.

1971); See U.S. Const. Amend. VI; Colo.Const. Art. II, §§ 16, 25; Thompson v.

People, 156 Colo. 416, 399 P.2d 776 (1965). The Due Process Clause requires the

prosecution to prove beyond a reasonable doubt all of the elements included in the

definition of the offense of which the defendant is charged. Patterson v. New York,

432 U.S. 197, 210, 97 S.Ct. 2319 (1977). Plaintiff’s medical marijuana plants were

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seized in order to be used by the prosecution, on behalf of the People of the State

of Colorado, to be presented in a public trial in order to prove that Plaintiff

violated the Uniform Controlled Substances Act of 1992 (“USCA”), specifically

C.R.S. § 18-18-406.

The Colorado State legislature enacted the USCA because “regulation of

controlled substances in this state is important and necessary for the preservation

of public safety and public health.” C.R.S. § 18-18-401(1)(a). Therefore,

Plaintiff’s medical marijuana plants were seized to preserve public safety and

public health. Then, Plaintiff’s medical marijuana plants were publically presented

during his trial and used for the public purpose of prosecuting Plaintiff on behalf

of the People of the State of Colorado, otherwise known as the public. Plaintiff’s

medical marijuana plants were clearly taken for public use and Plaintiff has

received no compensation. Therefore, Plaintiff suffered a violation of his Fifth

Amendment right guaranteeing that his private property would not be taken for

public use without just compensation, as well as his rights under Colorado

Constitution Art. II § 15, which makes no distinction between public and private

use of Plaintiff’s property.

E. Plaintiff’s Section 1983 Claims Against Defendant Mesecher In His

Individual Capacity Are Not Barred For Lack Of Personal Participation.

The personal involvement of one allegedly denying constitutional rights

under color of state law is an essential element of a civil rights claim against him.

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Bennett v. Passic, 545 F.2d 1260, 1262 (10th Cir. 1994), citing Battle v. Lawson,

352 F. Supp. 156 (W.D. Okl. 1972).

Defendant Mesecher orchestrated every aspect of the investigation against

Plaintiff, including but not limited to, the search and seizure of Plaintiff’s medical

marijuana plants. Specifically, Defendant Mesecher;

1. interviewed a citizen informant who lived in the area of 12669 North County Road 5 in Wellington, Colorado, regarding suspicious activity that was going on at 12669 North County Road 5; 2. observed the residence and gray shop on the property of 12669 North County Road 5 from the public roadway and neighboring properties; 3. talked to Alex Otero who is the owner of the property at 12669 North County Road 5; 4. conducted surveillance at 5228 East Harmony Road in Timnath, Colorado; 5. contacted Dispatch for the Colorado State Patrol and requested to have Plaintiff’s pickup stopped; 6. went to 12669 North County Road 5 and attempted to contact and identify Plaintiff; 7. contacted an employee of Poudre Valley REA to get the utility records for 12669 North County Road 5 in Wellington, Colorado; 8. conducted a computer check via the Internet of the Larimer County Assessor property information for the property tax year 2010 for Plaintiff’s property; 9. contacted a representative of First Bank of Wheat Ridge to see if they had an account name of Dry Ground LLC, Plaintiff’s company;

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10. requested information from the Department of Labor for a work history for the wages reported by Plaintiff; 11. met with County Court Judge Cynthia Hartman North County Road 5 and 5228 East Hannony Road. Both of the warrants were signed by Judge Hartman. Defendant Mesecher made copies of the warrants and attached them to his report; 12. instructed members of the Larimer County Sheriffs Office executed search warrants at 12669 North County Road 5 in Wellington, Colorado, and 5228 East Harmony Road in Timnath, Colorado; 13. responded to the Larimer County Detention Center to fill out an Affidavit in Support of Warrantless Arrest and booking Information on Plaintiff; 14. assisted in processing evidence that was collected from 12669 North County Road 5 in Wellington, Colorado, and 5228 East Harmony Road in Timnath, Colorado, including Plaintiff’s medical marijuana plants.

(Plaintiff’s Exhibit 1). Defendant Mesecher was intimately involved in every aspect of Plaintiff’s

case from the initial contact with an anonymous informant to serving as advisory

witness for the prosecution during Plaintiff’s trial. The only action Mesecher failed

to perform was to check the Registry to determine whether Plaintiff was a

registered medical marijuana patient and caregiver. Mesecher lead the

investigation against Plaintiff and was thereby responsible for the destruction of

Plaintiff’s medical marijuana plants during the search and seizure he coordinated.

Therefore, Plaintiff’s § 1983 claims against Defendant Mesecher in his individual

capacity are not barred for lack of personal participation.

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F. Plaintiff’s Section 1983 Claims Against Defendant Mesecher In His

Individual Capacity Are Not Barred By Qualified Immunity.

In an action under §1983, a plaintiff must first establish an individual

defendant violated a federal law or the United States Constitution. Even if a

violation is established, a defendant may be entitled to qualified immunity.

Individual defendants are entitled to qualified immunity unless it is demonstrated

that their alleged conduct violates clearly established constitutional rights of which

a reasonable person in their positions would have known.” Murrell v. Sch. Dist.

No. 1, Denver, Colo., 186 F.3d 1238,1251 (10th Cir. 1999). The inquiry is an

objective one, focused on “whether the officers’ actions [were] objectively

reasonable in light of the facts and circumstances confronting them, without regard

to underlying intent or motivation.” Weigel v. Broad, 544 F.3d 1143, 1151 (10th

Cir. 2008).

Defendant Mesecher’s actions were not objectively reasonable given that he

checked nearly every private and public agency’s records regarding Plaintiff

except for the Colorado Department of Public Health and Environment’s Medical

Marijuana Registry. Had Defendant Mesecher performed this simple action, he

could have easily verified that Plaintiff was authorized to cultivate the amount of

medical marijuana that he was cultivating on September 22, 2010. Furthermore, a

wealth of medical marijuana documentation was present on Plaintiff and at his

properties, thereby informing officers, including Mesecher, than Plaintiff was

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cultivating marijuana for medical use under Colorado Constitution Art. XVIII §

14.

Plaintiff satisfies the initial burden of showing that a defendant has violated

a clearly established Colorado State law, Colorado Constitution Art. II § 15 and

Colorado Constitution Art. XVIII § 14(2)(e). Furthermore, Defendant Mesecher

cannot show that his actions were objectively reasonable in light of his extensive

experience with Colorado’s medical marijuana law and the information he

possessed at the time of his actions. Albright v. Rodriguez, 51 F.3d 1531, 1534-35

(10th Cir. l995); Salmon v. Schwarz, 948 F.2d 1131, 1136 (10th Cir. l991).

Therefore, Plaintiff’s § 1983 claims against Defendant Mesecher in his individual

capacity are not barred by qualified immunity.1

G. Plaintiff States A Section 1983 “Entity” Claim Against The Sheriff’s

Office And Against Justin Smith And Pete Mesecher In Their Official

Capacities.

The government as an entity is responsible under §1983 when the execution

of a government’s policy or custom inflicts the injury. Monell v. Department of

Social Services of City of New York, 436 U.S. 658, 694-695, 98 S.Ct. 2018 (1978).

The Larimer County Sheriff’s Office’s policy was to cut down marijuana plants,

even if there was evidence that the plants were for medical use pursuant to

Colorado Constitution Article XVIII § 14.

1 For further argument on why the Governmental Immunity Act is inapplicable, see Section J of the Argument section of this Response to Defendants’ Motion for Summary Judgment.

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To sustain an entity or official capacity liability claim for §1983 violations,

the plaintiff must show: (1) the existence of a municipal custom or policy; and (2)

a direct causal link between the custom or policy and the violation alleged. Anaya

v. Crossroads Managed Care Systems, Inc., 195 F.3d 584, 592 (10th Cir. 1999)

(quoting Hollingsworth v. Hill, 110 F.3d 733, 742 (10th Cir. 1997)).

Defendant Mesecher states that he did not instruct officers to cut down

Plaintiff’s medical marijuana plants. (Pete Mesecher Affidavit, Para. 8). However,

officers still destroyed Plaintiff’s medical marijuana plants, regardless of where

the cut was made on the plant. The officers were acting pursuant to Larimer

County Sheriff’s Office policies and procedures when they executed the search

warrants on Plaintiff’s properties. Officers with the Larimer County Sheriff’s

Office routinely destroy marijuana plants that they think are illegal and non-

medical. (Affidavit of Kaleb Young, Para 6). While operating under these policies

and procedures, officers located medical marijuana paperwork and also cut down

the medical marijuana plants they found in Plaintiff’s residence. The destruction of

the 42 medical marijuana plants in violation of the Colorado Constitution was the

result of the Larimer County Sheriff’s Office’s custom, policy, or procedure of

cutting down marijuana plants that they think are illegal. Pete Mesecher did not

believe that the marijuana in this case was medical. (Affidavit of Pete Mesecher,

Para. 4). Therefore, pursuant to Larimer County Sheriff’s Office’s custom and/or

policy, officers destroyed Plaintiff’s medical marijuana plants. This policy directly

caused the constitutional violations alleged by Plaintiff.

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H. There Is A Private Right Of Action For Violation Of Colorado

Constitution Article XVIII, Section 14(2)(e).

Defendants argue that the critical question in whether the Colorado

Constitution Article XVIII § 14 implicitly creates a private right of action is

whether the drafters of the law intended such a result.

Colorado Constitution Article XVIII § 14 is a constitutional amendment

that was approved by Colorado voters in November of 2000 and enacted in

January 2001. Defendants’ references to the Medical Marijuana Code and case law

interpreting private rights of action based on statutory violations are misplaced.

Colorado Constitution Article II § 15 does not expressly create a private

right of action. However, the purpose of inserting the word "damaged" into this

section was to add an additional right of action. City of Pueblo v. Strait, 20 Colo.

13, 19, 36 P. 789, 791 (1894). Likewise, the addition of the word “destroyed” to

Colorado Constitution Article XVIII § 14(2)(e) creates an additional right of

action. Colo. Consti. Art. XVIII § 14(2)(e).

The Medical Marijuana Code expressly does not apply to patients and

caregivers acting pursuant to Colorado Constitution Article XVIII § 14. C.R.S. §

12-43.3-103(2)(e); 12-43.3-104(8). Plaintiff was a patient and caregiver acting

pursuant to Colorado Constitution Article XVIII § 14 and not a licensee pursuant

to the Medical Marijuana Code. Therefore, the Medical Marijuana Code is

inapplicable to Plaintiff and its failure to add an express remedy for the seizure of

medical marijuana from a state-licensed medical marijuana center or optional

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premises cultivation facility, as well as the Colorado Court of Appeals decision in

Giuliano v. Jefferson County, --- P.3d ---, 2012 WL 5360940 (Colo. App.), is

irrelevant to whether Plaintiff, an individual medical marijuana patient and

caregiver and not a medical marijuana center or optional premises cultivation

facility licensee, may recover against a government agency that intentionally

destroyed his medical marijuana plants in derogation of Colorado Constitution

Article XVIII § 14(2)(e) and Colorado Constitution Article § 15.

I. Plaintiff’s State Law Claim Under The Colorado Constitution Article

XVIII, Section 14(2)(e) Is Not Barred By The Statute Of Limitations.

C.R.S. 13-80-103 provides,

The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, shall be commenced within one year after the cause of action accrues, and not thereafter: *** (c) All actions against sheriffs, coroners. police officers, firefighters, national guardsmen, or any other law enforcement authority. . . .” C.R.S. § 13-80-103(1)(c).

The term “sheriff” is used in its generic sense and includes the whole class

of officers performing the duties of the office of sheriff and includes deputy

sheriffs. Bailey v. Clausen, 192 Colo, 297, 557 P.2d 1207 (1976).

Defendants allege that Plaintiffs action accrued at the latest on September

28, 2010. However, Plaintiff’s attempts to prove his authorization to possess and

cultivate the 42 medical marijuana plants at issue in this case could not have been

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fruitful until a jury acquitted him of all charges and he was presented with his

destroyed property on December 2, 2011.

Plaintiff was required to proceed to trial and be acquitted of all charges

before he was able to be authorized under the Colorado Constitution Article XVIII

§ 14(2)(e) to have all of his medical marijuana plants returned to him. It was not

until Plaintiff received his dead and useless medical marijuana plants on

December 2, 2011 that Plaintiff was comprised of the knowledge that law

enforcement officers from the Larimer County Sheriff’s Office had not complied

with the requirements of Colorado Constitution Article XVIII § 14(2)(e), thereby

supporting a cause of action for the destruction of his property. Therefore,

Plaintiff’s claim under the Colorado Constitution Article XVIII, Section 14(2)(e)

accrued on December 2, 2011.

Plaintiff was required by C.R.S. § 13-80-103 to file his claim under the

Colorado Constitution Article XVIII, Section 14(2)(e) within 365 days from

December 2, 2011. 365 days after December 2, 2011 is Saturday December 1,

2012. Pursuant to C.R.C.P. 6(a);

In computing any period of time prescribed or allowed by these rules, the day of the act, event, or default from which the designated period of time begins to run shall not be included. Thereafter, every day shall be counted, including holidays, Saturdays or Sundays. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. The "next day" is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.

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C.R.C.P. 6(a). Since, in this case, the cutoff date falls on a Saturday, the Complaint was to

be filed by Monday December 3, 2012. Plaintiff filed his Complaint on December

3, 2012. Therefore, Plaintiff’s claim under the Colorado Constitution Article

XVIII, Section 14(2)(e) has been brought within the one-year statute of

limitations.

J. Plaintiff’s State Law Claim Under The Colorado Constitution Article

Xviii, Section 14(2)(e) Is Not Barred By The Colorado Governmental

Immunity Act.

There is a private right of action for enforcement of Article XVIII, Section

14(2)(e). However, should the Court determine that Plaintiff’s claim could lie in

tort, the GIA still does not apply to Plaintiff’s claims.

The GIA, on its face, appears to preclude any claim that "lies in tort or

could lie in tort" from being pursued against a public entity unless such claim is

within certain specified exceptions. However, other constitutional and statutory

provisions also authorize legal actions against either the state or one or more

political subdivisions for injuries sustained under circumstances not described in §

24-10-106(1) of the GIA. The most notable other instance in which the state has

authorized a suit for damages is that in which private property is taken or damaged

by the state or a political subdivision and compensation is required to be paid

under Colo. Const. Art. II, § 15. Conners v. City of Colorado Springs, 962 P.2d

294, 296 (Colo.App. 1997); citing Hayutin v. Colorado State Department of

27

Highways, 175 Colo. 83, 485 P.2d 896 (1971), cert. denied, 404 U.S. 991, 92 S.Ct.

533, 30 L.Ed.2d 542 (1971). Plaintiff’s claim under Colorado Constitution Art.

XVIII § 14(2)(e) is more akin to a replevin claim rather than a claim for

conversion or negligence.

In the case of Desert Truck Sales v. City and County of Denver, Plaintiff

sued under a theory of replevin after a Denver police officer impounded its 1976

Rolls Royce automobile. The trial court determined that, because the replevin

action sounded in tort, GIA was applicable and, because Plaintiff had not given

proper notice as required by § 24-10-109, dismissed the complaint. Desert Truck

Sales, Inc. v. City and County of Denver, 821 P.2d 860, 861 (Colo.App. 1991).

The Court of Appeals disagreed and found that;

Plaintiff's complaint alleged that its personal property had been wrongfully confiscated and detained. Therefore, it was an action based on conversion. See Glenn Arms Associates v. Century Mortgage & Investment Corp., 680 P.2d 1315 (Colo.App.1984), which is an action in tort. See Ferguson v. Turner, 69 Colo. 504, 194 P. 1103 (1921); See also Montgomery Ward & Co. v. Andrews, 736 P.2d 40 (Colo.App.1987). Thus, plaintiff's claim would appear to be within the scope of the Act. However, certain causes of action even though they lie, or could lie, in tort are excluded from the coverage of the Governmental Immunity Act. See Jorgenson v. City of Aurora, 767 P.2d 756 (Colo.App.1988); Jones v. Northeast Durango Water District, 622 P.2d 92 (Colo.App.1980); Srb v. Board of County Commissioners, 43 Colo.App. 14, 601 P.2d 1082 (1979). In Srb v. Board of County Commissioners, supra, we held that a claim for property damage under Colo. Const. Art. II, § 15, which prohibits the government from taking private property for public or private use without just compensation, is not within the coverage of the Act. We noted that this constitutional clause creates an exception

28

to the doctrine of governmental immunity, see Board of County Commissioners v. Adler, 69 Colo. 290, 194 P. 621 (1920), and, since the purpose of the constitutional provision is to provide a remedy for injury to private property inflicted by the government, it is remedial in nature and must be liberally construed. Accordingly, we concluded that, since the claim at issue there arose under the constitutional just compensation clause, it was not subject to the provisions of the Governmental Immunity Act. Desert Truck Sales, Inc., 821 P.2d at 861-62.

Similarly to Desert Truck Sales and Srb v. Board of County

Commissioners, Plaintiff’s claims are for property damage under Colo. Const. Art.

II, § 15 and Colorado Constitution Art. XVIII § 14(2)(e). These constitutional

provisions prohibit the government from taking or damaging private property for

public or private use without just compensation. Furthermore, C.R.S. § 24-10-109

does not apply to claims for civil rights violations. See Mucci v. Falcon Sch. Dist.,

655 P.2d 422 (Colo. App. 1982); Barrack v. City of Lafayette, 829 P.2d 424 (Colo.

App. 1991); Conners v. City of Colo. Springs, 962 P.2d 294 (Colo. App. 1997),

aff'd, 993 P.2d 1167 (Colo. 2000).

Therefore, Plaintiff’s claims are not within the coverage of GIA and are not

subject to the notice requirements of C.R.S. § 24-10-109.

PRAYER FOR RELIEF Wherefore, Plaintiffs respectfully request that the Court deny Defendants’

Motion for Summary Judgment, and for all just and proper relief.

Dated this 3rd day of April, 2013 Respectfully Submitted,

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/s/ Travis B. Simpson Travis B. Simpson Robert J. Corry, Jr.

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on April 3, 2013, a true and correct copy of the foregoing RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT was filed and served via ICCES to the following: George H. Hass Jeannine S. Haag William G. Ressue 224 Canyon Ave. Suite 200 Post Office Box 1606 Fort Collins, Colorado 80522 Tel: (970) 498-7450 ghass@larimer.org jeanninehaag@larimer.org wressue@larimer.org /s/ Travis B. Simpson In accordance with C.R.C.P. 121 § 1-26(9), a printed copy of this document with original signatures is being maintained by the filing party and will be made available for inspection by other parties or the Court upon request.