Young v. Larimer Cnty. Sheriff's Office

• Decision Date: 11 September 2014
• Docket Number: Court of Appeals No. 13CA1338
• Citation: 2014 COA 119,356 P.3d 939
• Parties: Kaleb YOUNG, Plaintiff-Appellant, v. LARIMER COUNTY SHERIFF'S OFFICE, a local government entity; Justin Smith, in his official and individual capacity as Larimer County Sheriff; and Detective Pete Mesecher, in his official and individual capacity, Defendants-Appellees.
• Court: Colorado Court of Appeals

356 P.3d 939
2014 COA 119

Kaleb YOUNG, Plaintiff-Appellant
v.
LARIMER COUNTY SHERIFF'S OFFICE, a local government entity; Justin Smith, in his official and individual capacity as Larimer County Sheriff; and Detective Pete Mesecher, in his official and individual capacity, Defendants-Appellees.

Court of Appeals No. 13CA1338

Colorado Court of Appeals, Div. III.

Announced September 11, 2014

Corry & Associates, Robert J. Corry, Jr., Matthew W. Buck, Denver, Colorado; Simpson Defense Firm, LLC, Travis B. Simpson, Louisville, Colorado, for Plaintiff-Appellant

Jeannine S. Haag, County Attorney, William G. Ressue, Deputy County Attorney, Fort Collins, Colorado, for Defendants–Appellees

Opinion

Opinion by JUDGE WEBB

¶ 1 This case presents another novel question that arises from the conflict between Colorado law and federal law concerning marijuana—does 42 U.S.C. § 1983 (2012) provide a remedy for state action that violates a right created by the Medical Marijuana Amendment, article XVIII, section 14 of the Colorado Constitution (MMA)? Because federal law criminalizes possession of marijuana, we conclude that such a claim is not cognizable under section 1983.¹ We reject the other claims of plaintiff, Kaleb Young. Therefore, we affirm the summary judgment entered in favor of defendants, Larimer County Sheriff's Office, and Pete Mesecher and Justin Smith, both individually and in their official capacities.

I. Background

¶ 2 Young leased property where he grew marijuana plants and distributed marijuana for medical use under the MMA. After obtaining search warrants, sheriff's deputies entered Young's property and seized forty-two marijuana plants by cutting them off just above the roots. This action killed the plants.

¶ 3 Young was charged with cultivation of marijuana, possession with intent to manufacture or distribute marijuana, and possession of more than twelve ounces of marijuana. The plants that had been seized were used as evidence. Still, the jury acquitted him of all charges based on the affirmative defense of medical use of marijuana by a person suffering from a debilitating medical condition under section 14(4)(b) of the MMA.

¶ 4 Based on the verdict and section 14(2)(e) of the MMA, the court ordered all seized property, including the plants, returned to Young. After the dead plants were returned, Young brought this action for damages on the basis that the deputies had killed the plants.

II. Standard of Review

¶ 5 An appellate court reviews a summary judgment de novo.

356 P.3d 941

Shelter Mut. Ins. Co. v. Mid–Century Ins. Co. , 246 P.3d 651, 657 (Colo.2011). A summary judgment will be upheld only where the record does not show any genuine issue of material fact. Natural Energy Res. Co. v. Upper Gunnison River Water Conservancy Dist. , 142 P.3d 1265, 1276 (Colo.2006). On review, the appellate court—like the trial court—must take all facts in the light most favorable to the nonmoving party. Id.

III. The Trial Court Properly Entered Summary Judgment on Young's 42 U.S.C. § 1983 Claim

A. Preservation

¶ 6 Young's complaint alleged that “defendants acted under color of state law to deprive [him] of certain constitutionally protected rights under the Fifth and Fourteenth Amendments to the Constitution of the United States,” in violation of 42 U.S.C. § 1983. The rights specified were:

• “The right not to be deprived of property without due process of law;”

• “The right not to be deprived of liberty without due process of law;” and

• “The right to just compensation for taking of property.”

¶ 7 According to the complaint, the property claim involved property “possessed, owned, and used in connection with the medical use of marijuana.” Young's summary judgment response described the liberty claim as freedom “from bodily harm stemming from the symptoms of his debilitating medical condition” that he would have treated with marijuana from the plants that had been destroyed. These rights rested solely on Young's status as both a patient and a primary caregiver under the MMA.

B. Law

¶ 8 42 U.S.C. § 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... 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....

¶ 9 To prove a section 1983 claim, a plaintiff must “establish that the defendant deprived him of a federal right and that the defendant acted under color of state law.” Marks v. Gessler, 2013 COA 115, ¶ 95, ––– P.3d –––– (cert. granted, June 23, 2014). But section 1983 “does not create substantive rights; it provides a procedure to seek relief for violation of certain federal constitutional and statutory provisions.” Claassen v. City & County of Denver, 30 P.3d 710, 715 (Colo.App.2000) ; see also Monez v. Reinertson, 140 P.3d 242, 244 (Colo.App.2006) (“To seek redress through § 1983, a plaintiff must assert the violation of a federal right, not merely a violation of federal law.” (internal quotation marks omitted)). Thus, “[b]ecause the rights enforceable under [section] 1983 are only those recognized either by the federal constitution or by a federal statute, [section] 1983 cannot be used to enforce purely state rights....” Perry v. Bd. of Cnty. Comm 'rs, 949 P.2d 99, 101 (Colo.App.1997).²

C. Application

¶ 10 For purposes of opposing the summary judgment motion, Young showed that the deputies had killed his marijuana plants and, as a result, he could no longer use his own marijuana to treat his debilitating medical condition. As relevant here, the MMA permits “the medical use of marijuana” and provides no less than a defense to prosecution under state law for possession of up to two ounces of medical marijuana and cultivation of up to six medical marijuana plants for a patient and for each of a caregiver's patients, unless “greater amounts were medically necessary to address the patient's debilitating

356 P.3d 942

medical condition.” Colo. Const. art. XVIII, § 14(4)(b).³ Section 14 (2)(e) requires that medical marijuana which has been seized be returned upon circumstances including, as here, acquittal of criminal charges based on the protection afforded a patient or primary caregiver. Thus, the rights that Young alleges were violated arose under state law.

¶ 11 But contrary to the MMA, Congress has classified marijuana as a schedule I controlled substance. See 21 U.S.C. § 812(c) Schedule I(c)(10) (2012). By doing so, “the manufacture, distribution, or possession of marijuana became a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration preapproved research study.” Gonzales v. Raich, 545 U.S. 1, 14, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (state law authorizing possession and cultivation of marijuana does not circumscribe federal law prohibiting use and possession); see also Raich v. Gonzales, 500 F.3d 850, 866 (9th Cir.2007) (rejecting due process liberty interest claim based on physician's advice to use medical marijuana because “federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering”); accord Beinor v. Indus. Claim Appeals Office, 262 P.3d 970, 977 (Colo.App.2011) (“Although Colorado's medical marijuana provision may protect claimant from prosecution under Colorado's criminal laws ... the amendment has no bearing on federal laws, under which marijuana remains an illegal substance.”). Thus, the federal prohibition implicates both Young's property interest (possession) and liberty interest (use) claims.⁴

¶ 12 Barrios v. County of Tulare, No. 1:13–CV–1665, 2014 WL 2174746 (E.D.Cal.2014), applied this prohibition in dismissing a section 1983 claim based on facts similar to those presented here. The County had seized and destroyed marijuana that was being cultivated by a medical marijuana patient. The complaint alleged, in part, a section 1983 claim for “violation of the Fourteenth Amendment due process clause based on the destruction of marijuana without an opportunity to be heard.” Id . at *4.

¶ 13 The federal district court granted the County's motion to dismiss this claim. The court acknowledged that “[p]roperty interests derive not from the Constitution but from existing rules or understandings that stem from an independent source such as state law....” Id . But then it explained:

• “[F]ederal constitutional law determines whether that interest rises to the level of a legitimate claim of entitlement protected by the Due Process Clause.” Id. (internal quotation marks omitted).

• “[E]ven though state law creates a property interest, not all state-created rights rise to the level of a constitutionally protected interest.” Id. (internal quotation marks omitted).

• “The Complaint

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