Celebrating 10 years! 2007-2017

Potential Theories to Sue Police

All - Got an interesting potential client. They operate jd4hire11/09/17
The definition of "drug paraphernalia" under the Controlled genylawyer11/09/17
"Some equipment undoubtedly is used for illegal grows" Is bucwild11/09/17
He would have no knowledge of how the equipment would be use jd4hire11/09/17
"he police would have no way to differentiate equipment used bucwild11/09/17
Sounds comparable to police staking out a known drug dealer' mrtor11/09/17
I would imagine you've got nothing if the cops are just sitt onehell11/09/17
Tell potential client to start delivering. fartacus11/09/17
Have you tried talking to the captain of the precinct, to ge guyingorillasuit11/09/17
Not so productive talking to some middle manager. If it's po onehell11/10/17
Dey rayciss is a standard legal theory. I don't see what isthisit11/10/17
https://www.youtube.com/watch?v=THb c_Qw8FxA esquire13811/10/17
jd4hire (Nov 9, 2017 - 2:56 pm)

All -

Got an interesting potential client. They operate a store which sells gardening supplies. The vast majority of their supplies are used to cultivate marijuana (presumably medicinal as we are a medicinal state). Some equipment undoubtedly is used for illegal grows.

Store alleges that police are staking the store, running plates, following customers, etc. Store alleges they have lost 221k in revenue since this began. Store has been around for a decade.

Recognize this would be a tough/ unique case, but am curious on thoughts for potential theories of liability. Right now all that sticks out is s. 1983 for due process/ equal protection (differential treatment of other stores) and tortious interference with business relations. Also contemplate NEID and IIED.

Any others? Thoughts?

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genylawyer (Nov 9, 2017 - 5:14 pm)

The definition of "drug paraphernalia" under the Controlled Substances Act (CSA) specifically excludes products that have a legit use. The legal test is whether the material is "primarily intended for use in manufacturing....[drugs]" https://www.deadiversion.usdoj.gov/21cfr/21usc/863.htm
The CSA provides tons of further guidance on factors used to evaluate whether something is considered drug paraphernalia or not.

So the old farmer with a corn cob pipe on his dashboard would not be prosecuted, but the tweaker with a glass crack/meth/weed pipe might be. I suggest looking carefully at the CSA and related case law. It should be obvious whether your client is marketing his gardening equipment to old ladies growing tomatoes vs. weed growers etc. What kind of salespeople does he employ? Are there posters and signs with green leaves all over the place? Does he sell tomato seeds? If he has a legitimate argument that his equipment is not predominantly for an illegal purpose, he might have a basis to push back.

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bucwild (Nov 9, 2017 - 3:23 pm)

"Some equipment undoubtedly is used for illegal grows"

Is that really true? If so, there is precedent at the federal level (and presumably most if not all states) to allow for police investigation into a business, regardless of how it interferes with business relations. If the cops have a reasonable suspicion of criminal activity, you may have a difficult case to make, at least on the business tort end.

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jd4hire (Nov 9, 2017 - 3:31 pm)

He would have no knowledge of how the equipment would be used and the police would have no way to differentiate equipment used for legal versus illegal grows. Participants in our medical marijuana program are anonymous and they can only verify if they have someone's patient card. So, the idea that they may be used for illegal grows is total speculation on my part. For all I know, everyone could be patients.

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bucwild (Nov 9, 2017 - 3:34 pm)

"he police would have no way to differentiate equipment used for legal versus illegal grows."

Isn't that why police, you know, investigate? This is not my area of expertise, but it seems reasonable that if you think there's a high likelihood of a crime going on, the police can have similar speculations. Anyway, I'm sure there's plenty of case law on topics like this.

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mrtor (Nov 9, 2017 - 3:37 pm)

Sounds comparable to police staking out a known drug dealer's turf -- bad for business, but usually authorized.

I have a hard time wrapping my head around the basic argument here. Mere police presence should not impact any legitimate business traffic or business dealings. Thus, he is essentially arguing a loss of business from those with illegal or illegitimate intent. How much sympathy is that going to generate? That's effective policing.

Maybe he could file a compliant with the department about police harassment?

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onehell (Nov 9, 2017 - 3:39 pm)

I would imagine you've got nothing if the cops are just sitting somewhere they have a right to be. And if they're harassing people after they leave the store and its curtilage then whatever claims those customers might have don't change the fact that the store would have a standing issue, nor does it change the fact that those customers are unlikely to complain if they are, as you suspect, doing illegal things.

How is the client's relationship with the neighborhood? Oftentimes, the cops are responding to complaints from neighbors who find a given business unsavory and want it gone. This is particularly common in neighborhoods that are starting to gentrify. Something that was fine when your neighbors were working stiffs becomes less and less welcome as the area fills up with soccer moms. Most cops nowadays have a "I've got better things to do" attitude when it comes to MJ, but when neighbors start complaining (particularly if those neighbors have money) it becomes a political issue because they don't just call dispatch. They call the mayor, they call city council members, etc. The politicians then put pressure on the chief, and the relationship between a city police chief and the elected officials who appoint him is pretty simple: "You keep your job only if you help us keep ours."

These motivations are of course impossible to prove, and the cops (as they often do when accused of racism) will simply note that they cannot control who calls in a "suspicious person," nor can they control for or know the motivations of the caller.

This may be one of those situations where they're not so much looking to make a bust as to run you out of town. I hate to say it, but the problem is usually solved by relocating to somewhere more ghetto, or at least more of an industrial zone. In my town the head shops that sell bongs and stuff are never in desirable neighborhoods, even if they don't sell any actual pot. And the actual dispensaries are definitely zoned exclusively into the poorest or most remote parts of town.

TLDR: Client options are probably either relocate, or start selling pumpkin spice lattes and yoga pants.

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fartacus (Nov 9, 2017 - 4:36 pm)

Tell potential client to start delivering.

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guyingorillasuit (Nov 9, 2017 - 8:05 pm)

Have you tried talking to the captain of the precinct, to get the cops off their back?

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onehell (Nov 10, 2017 - 3:16 pm)

Not so productive talking to some middle manager. If it's politics that motivated it (which for a normally low-priority issue like marijuana, it probably is) then it's politics that must be used to push back.

Have client join the local Chamber of Commerce and donate heavily to it so they'll lobby to protect your client's interests. In my experience, the only thing with more influence over a city councilman or mayor than wealthy neighborhood homeowner groups is the chamber of commerce and its "small business job creator" membership.

With the help of something like the chamber of commerce, "driving out the headshops" becomes "driving out the poor little gardening business just trying to contribute to economic development and jobs in our community." It's an opportune time. Politicians talk about small businesses nowadays in the same romanticized terms once reserved for nonprofits, and then some.

You're not a business selling nominally legal supplies necessary for criminal enterprises with a wink and a nod. No, like all small businesses, this place is a "backbone of the economy!" You have to speak the language of the people you are trying to convince and in all likelihood that isn't the police. They would probably gladly go find something else to do if there wasn't some kind of political pressure going on.

A beat cop's only real motivation is not to get hassled and to stay out of the newspapers as much as possible. Compstat numbers need to be low in their area, citizen whining needs to be at a minimum. Tickets must be written with a frequency right in the middle of the bell curve. The rest of the job is just driving around and busting people for stuff that happens right in front of your own two eyes. Investigation is barely in their vocabulary. They're not conducing some big sophisticated surveillance operation because they want to. Certainly not for freaking marijuana. They're doing it because someone who matters is complaining.

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isthisit (Nov 10, 2017 - 9:15 am)

Dey rayciss is a standard legal theory.

I don't see what you have here.

Maybe reach out to other local MJ shops and see if they've been subject to similar treatment. If so, get them to sign onto a letter to the chief of police, local chamber of commerce, city hall, etc. Make noise as a group and tell them to stop interfering with your legal business operations.

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esquire138 (Nov 10, 2017 - 9:40 am)

https://www.youtube.com/watch?v=THbc_Qw8FxA

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