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Interesting Twist on When Oregon Law Enforcement Must Return Seized Medical Marijuana

ORS 475.323 requires a state or local law enforcement agency to return medical marijuana it has seized if the District Attorney determines the individual from whom it was seized was “entitled to the protections” of the Oregon Medical Marijuana Act.  Such a determination need not be express, but may be evidenced by a decision not to prosecute, the dismissal of charges or an acquittal. In State v. Kama the Oregon Court of Appeals rejected law enforcement’s argument that returning medical marijuana would force it to violate the federal Controlled Substances Act.  So today’s decision by the Court of Appeals in State v. Ehrensing, reversing a court order returning marijuana, comes a bit out of left, or is it right, field! This is particularly true since this is the second time Mr. Ehrensing and the Douglas County Sheriff took this same field with the appeals court as umpire.  Last time the court called Mr. Ehrensing safe, he got his marijuana back, but only because of a fielding error.  This time the umpire called him out!

The difference this time was that the charges against Mr. Ehrensing were not dismissed by the DA.  Instead they were dismissed by the court on speedy trial grounds, which is not the same as an acquittal.  This meant ORS 475.323 did not apply.  This left ORS 133.643, the general statute applying to disputes over items seized by law enforcement.  That statute requires the party seeking return to be “lawfully entitled to possess” the property sought.  Today’s decision held that required the person to be lawfully entitled to possess the property sought under state and federal law.  Since federal law prohibited possession of marijuana by Mr. Ehrensing, he was not eligible for return under the statute.

This case leaves two issues in its wake.  First, it did not overrule Kama.  While that means Kama’s holding stands, the courts language in Ehrensing could be read as supporting an alternative basis for the court to find return under ORS 475.323 improper. Only time will tell. Second, the opinion did not address ORS 133.623 which directs law enforcement in the handling of property seized without a warrant.  That statute does not contain the “lawfully entitled to possess” language of ORS 133.643.  However, it does require the person seeking return to establish the “right to possession beyond a reasonable doubt” and “to the satisfaction of the seizing officer”. It also allows law enforcement to obtain a court order to destroy “contraband”.  These provisions make it doubtful any law enforcement agency will voluntarily return seized marijuana under this statute.

One final point. DA’s refuse prosecution of or dismiss cases for many reasons.  Under ORS 475.323  that decision should only result in the return of seized marijuana if the DA concluded the individual from whom it was seized was entitled to the protections” of the Oregon Medical Marijuana Act.  While that statute allows the court to consider the DA’s action as evidence of such a conclusion, it does not prohibit the court from considering other evidence in determining if such a conclusion was reached.  Where the dismissal is motivated by some other reason, witness availability, evidentiary problems, whatever, the DA’s office should document those reasons and oppose the return of the Marijuana.

Use Care Responding to Public Records Requests

For a number of reasons.  Just ask the city of San Jose, California, which is having a hard time retrieving privileged documents it sent a law firm in response to its public records request. Read more at the Findlaw’s In-House counsel blog 

Can Coworkers Conspire for Purposes of Section 1983?

It’s not unusual for civil rights actions to include claims that the defendants conspired to violate the plaintiff’s rights. Nahmod Law has an interesting post on an Eleventh Circuit case reversing a district court’s order denying coworkers qualified immunity for a § 1983 conspiracy claim. The reason was the Intracorporate Conspiracy Doctrine, which holds a corporation and its employees acting within the scope of their employment are a single actor. This negates the multiplicity of actors necessary for the formation of a conspiracy.
It is unclear if the Ninth Circuit would apply the Intracorporate Conspiracy Doctrine to bar civil rights conspiracy claims involving coworkers. In Portman v. Cnty. of Santa Clara, 995 F.2d 898 (9th Cir. 1993) it avoided the issue in the context of a § 1985 conspiracy claim. In Schmitz v. Mars, Inc., 261 F.Supp.2d 1226 (D. Or., 2003) Judge Brown applied the doctrine to a § 1985 conspiracy claim, which she dismissed. Judge Wake of the District of District of Arizona applied the doctrine in dismissing § 1983 conspiracy claims in Donahoe et al v. Arpaio et al. However, other district courts rejected its application to civil rights claims.

Reichle v. Howards Revisited

I posted on Reichle when the Supreme Court issued its opinion in June  It was hoped that the court would use that case to answer the question; does probable cause bar a First Amendment retaliatory arrest claim?  Instead it avoided the issue by finding the defendants entitled to qualified immunity stating; “This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly established at the time of Howards’ arrest.”  In my post I commented on the confusing Ninth Circuit case law on this issue.  That confusion may now have cleared.

Yesterday the Ninth Circuit issued its opinion in Acosta V. City Of Costa Mesa, which addressed the constitutionality of a city ordinance governing public conduct at council meetings.  It found the ordinance overly broad but upheld the ordinance by striking the offending language.

Acosta also may have cleared up the confusion addressed in my earlier post when it found that the arresting officers entitled to qualified immunity.  In doing so it cited to Reichle for the proposition that there was no clearly established First Amendment right to be free from a retaliatory arrest that is otherwise supported by probable cause.

One caution.  The Acosta court viewed this arrest as being supported by strong probable cause.  Because existing Ninth Circuit case law denied qualified immunity only where the probable cause was weak, it could be argued that the Acosta decision broke no new ground.

My prior post can be accessed here.

Medical Marijuana Use Not Protected Under the ADA

If an employee can certify that he or she is smoking pot with a doctor’s approval and for a legitimate medical condition does the ADA prevent the employer from taking action against the employee for current use of drugs? Must the employer reasonably accommodate the drug use? The answer to these questions is “no”, at least according to the Ninth Circuit in James v. City of Costa Mesa.  For a fuller discussion of this case check out Up in smoke: Hopes of ADA protection for medical marijuana use are dashed . . . for now, anyway on the  Employment and Labor Insider blog.  Also, remember to check your state and local laws also as this opinion answers the question only under the ADA.

Does Probable Cause Trump the First Amendment; the Supreme Court Takes the Fifth

When the Supreme Court accepted review in Reichle v. Howards, it seemed the stars had aligned for a definitive ruling on the question; does probable cause bar First Amendment retaliatory arrest claims? So much for celestial alignment! The opinion issued this morning is not the big bang law enforcement was looking for. Instead, the court avoided the issue, finding that the Tenth Circuit erred in denying defendants qualified immunity due to the lack of clear precedent in that circuit.

So where does that leave law enforcement in the Ninth Circuit? In 2006 the Ninth Circuit held that probable cause does not bar retaliation claims. In light of this, courts in this circuit are unlikely to dismiss claims resulting from arrests made on weak probable cause, so long as plaintiff has some evidence to support the retaliation element of the claim. Where strong probable cause exists, the outcome is less certain. In a 2008 opinion the Ninth Circuit held that cases with strong probable cause but weak evidence of retaliatory motive fell outside circuit precedent and are properly dismissed. This suggests that the law has not developed sufficiently to provide adequate direction to law enforcement officers acting under those circumstances, making qualified immunity appropriate.

Two Big Wins for Law Enforcement

Yesterday the Supreme Court handed down its decisions in two cases I have been closely following.  Florence v. Board of Chosen Freeholders of County of Burlington, et al., addressed correctional policies that require the strip searching of individuals prior to their housing in a jails general population.  The court upheld such a policy, which was under attack on Fourth Amendment grounds. Rehberg v. Paulk addressed immunity for law enforcement officers who testify in grand jury proceedings.  The Supreme Court ruled that the same absolute immunity that trial witnesses enjoy applies to grand jury witnesses.

I will blog more on these cases after I have a chance to read them in detail.  From a quick read of Rehberg, it appears to be a big victory, with the court limiting LEO exposure to malicious prosecution claims to conduct such as providing false information when applying for a arrest warrant or to get a DA to prosecute. Florence appears to be consistent with changes in Ninth Circuit strip search standards over the last few years.  Some commentators have suggested that the opinion is not a complete victory for jail commanders, with the court leaving significant restrictions in place.  I will write further on these later.

The Challenge of Younger Employees and Technology

According to a recent Cisco survey, one in three college students and young professionals consider the Internet to be as important as air, water, food and shelter. Two out of three would choose having an Internet connection over having a car! So it’s not surprising that 70% of young professionals in the US admitted to breaking their employers’ IT policies, with 2 out of three breaking policy most or all the time!

This is dangerous for government employers for a multitude of reasons, and not just data security and claim exposure. Who wants to face their board/commission/council/tax payers the day after the front page or TV sweeps week story on the bad  web surfing habits of your employees!

Some tips on how you can address these issues (courtesy of

• Your employees need to know the rules if you want them to be followed. Have a written IT use policy and post it where it will be seen.  Ask employees to sign a copy. Maybe do this every six months. Better yet, customize the windows log-in screen to be an acknowledgment that the user has read and will comply with the policy.

• You need to train your employees not only on what the rules say but also why they are important. Your young employees are just that – young. They haven’t experienced a lot of workplace trauma yet, so they don’t really understand (or fully understand) why management is so particular on sometimes very ambiguous things (I’m allowed to access LinkedIn but not Facebook – why?). Accordingly, at the same time you teach them the penalties for rule breaking: verbal warning, write-up, suspension, termination, you need to explain what happens to your entity when they break the rules. Translate that to what it means for their future. A lot of employees, not just young professionals, don’t understand how much information about their use of technology is kept by IT, and that it is just a public records request away from being made public. Explain to them how government works, why the rules are in place and why they’re not necessarily management’s preference but are nonetheless management imperatives.

• We all operate off incentives and disincentives, so you can’t expect someone to change their behavior if there’s no incentive to do so. Reward those who abide by the rules and punish those who don’t.

• Remove the opportunity and turn off the magnet that draws them to rule-breaking. Setup workplace-specific security settings that prevent garbage from ever entering your building. Don’t want Pandora, Facebook, or LimeWire? Turn them off. You have this power.

• Over 60% of young employees in the survey said it was the IT department’s responsibility to protect information and devices. This is telling – they’ll do what they can get away with. Accordingly, your IT department needs to be a proactive one that prevents the problem instead of responding to it. This isn’t just a catch phrase. It costs less money to prevent a fire than to put it out and repair the water and smoke damage. The IT department needs to understand what young employees want to get at, what they should and shouldn’t be able to get at, and how to prevent access to those things from inside your walls.

The findings of this survey impact more than IT policy. Anyone hiring or supervising young professionals should read and understand its implications for recruitment, motivation and supervision.

Note: Is your entity prepared for the risks and challenges technology presents in litigation and with public record compliance. The Edward McGlone Law Firm can help. To request more information, click on the contact link found here.

Court Upholds Two Year Statute of Limitations for Survival Actions against Oregon Public Bodies

The Court of Appeals issued its decision today in Bell v. TriMet, finding that survival actions are subject to the Tort Claims Act’s two year statute of limitations.

In Bell, a passenger died from unrelated causes more than a year after he was allegedly injured while exiting a TriMet bus.  No suit was filed prior to his death, so the estate commenced a survival action against TriMet.  That suit was filed outside the two year limitation period provided under the Tort Claims Act (ORS 30.275(9)), but within the three year period provided for survival actions (ORS 30.075).  The trial court granted TriMet’s motion to dismiss, reasoning:

“ORS 30.075 is a statute of limitations. * * * And so it falls under the language there in ORS 30.275(9) that says [‘]or other statute providing a limitation on the commencement of an action.[‘] That’s what 30.075 is.  And it says, notwithstanding that, [‘]an action arising from any act or omission of a public body or [an] officer * * * shall be commenced within two years after the alleged loss * * *.[‘]”

On appeal, plaintiff argued that the survival statute had the effect of tolling the statute of limitations for one year, making it analogous to other statutes that toll the statute of limitations.  Plaintiff pointed the court to Baker v. City of Lakeside, where the Supreme Court found tolling statutes are not subject to ORS 30.275(9)

Find links to access the statutes and opinions referenced in this post on the Resources page of my website.  Congratulations Kimberly Sewell, TriMet’s Director of Legal Services, who briefed and argued this appeal.

Juggling the Fourth Amendment?

That question arises from today’s opinion in United States v. Jones.  In Jones, a divided Supreme Court found that law enforcement violated the Fourth Amendment when it placed a GPS device on a suspect’s car.  While the result was not particularly surprising, how the court got there was.

Ever since Katz v. United States, 389 U. S. 347 (1967), the court has answered Fourth Amendment questions by considering whether the government’s action invaded an expectation of privacy protected under the Constitution.  Prior to Katz, a Fourth Amendment violation arose only when the government trespassed on an individual’s person, property or papers.  In Jones, Justice Scalia reaches back 45 years and resurrects this trespass theory of Fourth Amendment jurisprudence, holding that an unconstitutional search occurred because the officers trespassed by attaching the GPS device to the suspect’s car.

The majority opinion makes clear that it is not doing away with the “privacy” branch of Fourth Amendment jurisprudence, a point Justice Sotomayor drives   home in her concurrence.  While agreeing that the Fourth Amendment protects against governmental trespass, she makes clear that the Fourth Amendment also protects against governmental intrusion on reasonable expectations of privacy, regardless of whether the government trespasses in the process.

So for now there are two balls in the air — trespass and privacy — and law enforcement must keep their eyes on both!

Update 1/25/2012

Tom Goldstein makes an important clarification in this post on the Scotus blog.  In Jones the court only decided that a search took place.  It did not address if that search required a warrant, finding that the government had failed to preserve that argument below. There are a number of exceptions to the warrant requirement and it is entirely possible that a future opinion of the court could find no warrant required for the short term use of GPS Monitoring.  Read Tom’s excellent post for more analysis.