Attorney: Cannabis Church Lawsuit Could Have Far-Reaching Effects 

I read "A Sack of Sacrament" in the July 4 North Coast Journal with interest, as you might imagine since the Redwood Spiritual Healing Ministry's lawsuit against Humboldt County raises issues that have long interested me in my legal dealings on behalf of cannabis growers. You brought up some interesting facts, but I think the column missed the main issue. At least the main issue for me.

The lawsuit was filed June 27 on behalf of the ministry by attorney Matthew Pappas, who alleged that the county of Humboldt and the California Department of Fish and Wildlife violated the church's rights when officers raided the church's Southern Humboldt property and destroyed an untold number of cannabis plants in five greenhouses.

Pappas sued on two fronts. First, the free exercise of religion clause from the First Amendment, and second, due process requirements of the 14th Amendment. I wish him well in his pursuit of religious freedom and his argument that the church should be exempt from cannabis regulation because it views the plant as a religious sacrament but, as you noted, the government finds itself in the paradox of defining religion in terms that still allow laws. 

It is the second claim, due process, which interests me the most. This claim is that when government agents came to the cultivation site, their authorization for this trespass was that they had obtained a search warrant from the courts. That warrant authorized them to come on the private property and search for evidence of a crime. If they felt they had found such, they could seize it. But this did not give them authority to destroy private property, except as necessary for their search.

And yet they allegedly vandalized the greenhouses in a way that was not required for their search, and they seized a minute amount of cannabis as evidence, destroying the rest of the church's plants. The claim is that the destruction of the plants was unwarranted, and the vandalism of the greenhouses was excessive of their authority to damage property. You might analogize this to excessive force claims where humans are injured or killed, except here it is property.

The California Department of Fish and Wildlife made some generic defenses when contacted by local reporter Kym Kemp, which you can read in her article about the case (www.kymkemp.com). The agency claimed that its law enforcement agents are authorized to seize and destroy illegal substances. They knew that the cannabis was illegal because the site was not licensed by the county and state, as all commercial cannabis operations must be. The alleged crime, then, would be cultivation of cannabis without a license. 

But the crux of Pappas' case is that the cultivation was not commercial, it was for religious purposes, not sale, and therefore did not require licenses. That the cultivation was commercial is a legal conclusion. Fish and Wildlife agents are neither trained nor authorized to make legal conclusions. For one thing, their doing so violates the separation of powers within the government. Only the courts can reach legal conclusions. Since the agents did not have a judicial determination that the cannabis was illegal, they did not have the legal authority to destroy it. Destroying it was a violation of the due process clause of the 14th Amendment.  What then should they have done when faced with what they strongly suspected was an illegal cultivation?

They had two options, neither of which allowed them to seize the cannabis. One was to pursue a criminal claim against the cultivators. Cannabis cultivation without a license is a crime under the Health and Safety Code.  If they wished to pursue this, they should have seized the amount of cannabis plant material mandated by law: 2 pounds and five representative samples from the rest of the cultivation.  They could have sought a court order to prevent the distribution of the rest until a judge made a ruling on the legality of the cultivation.

The other option was to pursue the case through the civil nuisance abatement process.

I believe the county had already started this process by issuing an abatement order. In response, Pappas says he notified the Humboldt County Planning Department of his religious cultivation exemption claim. If the county disputed his claim, the proper response is mandated in the county code: Take the issue to the courts. This would first be done through an administrative hearing before an administrative judge and then, if that judge's determination were to be disputed, an appeal to the Humboldt County Superior Court. The county did not do this. I imagine that when discovery occurs in Pappas' suit, it will turn out that the Humboldt County Planning Department instead entered colluded with the Department of Fish and Wildlife about the cultivation, starting the process that ended with the illegal destruction of the cannabis.

Even if the Pappas suit fails on the exercise of religion claim, it may well succeed on the due process claim. If it does, it will have far-reaching effects on enforcement of cannabis law.

Eugene Ed Denson is a long time cannabis lawyer who has defended many cultivators his 20-year career. Since legalization, he has worked with people getting licenses and defended those who were not against abatement. He and local attorney Fred Fletcher are also suing the county over what they believe to be illegal cannabis taxes.