cannabisnews.com: County To Seek Lawsuit Dismissal










  County To Seek Lawsuit Dismissal

Posted by CN Staff on January 25, 2004 at 07:12:53 PT
By Ryan McCarthy, Journal Staff Writer 
Source: Auburn Journal  

Placer County will ask a federal judge Monday to dismiss the lawsuit filed by a former Loomis couple over a 1998 search of their home for marijuana — an event they contend led them to bankruptcy, selling their home and divorcing.Dentist Michael Baldwin, 40, and his former wife, Georgia Chacko, claim deputies used excessive force in the search, an assertion the county denies. Sheriff’s deputies said they found 146 marijuana plants at the home. The couple said the marijuana found at their Moss Lane home was legal under Prop. 215, the medical marijuana measure California voters passed in 1996. 
Deputy county counsel David Huskey said Friday the United States District Court in Sacramento has already dismissed four of eight civil cases filed against the Sheriff’s Department marijuana eradication team over searches it conducted.Those dismissals came even though judges see a duty to give plaintiffs every benefit of the doubt so that cases can go before juries, he said.“They’re hard to win,” Huskey said of dismissals.Oakland attorney Paul Turley, who is representing Baldwin and Chacko, said he expects the request for dismissal to be denied.“Counties in these cases always seek dismissal,” Turley said. “I think we’re going to prevail.”A criminal cultivation charge filed after the search at the Loomis home was dismissed while a mistrial was declared on possession for sales charges when the jury deadlocked. The District Attorney’s office did not re-file charges.Baldwin said that within four months of the September 1998 arrest his dental practice in Rocklin no longer had any patients because of negative publicity.He was forced to file bankruptcy, added Baldwin, who said at one time his practice grossed about $500,000 a year. The dentist said he also had to sell his home to avoid foreclosure. Thoroughbred horses on the property were sold as well, Baldwin said, along with pets including exotic birds. Because of his ruined reputation and financial ruin, the marriage deteriorated and ended in divorce, Baldwin said. Deputy county counsel Huskey said, “Those are his allegations. We don’t know them to be true.”The motion for dismissal addresses only liability, Huskey said. If the federal court finds the county isn’t liable for the search, damages claimed by Baldwin in connection with bankruptcy and other matters are not at issue, Huskey said.“The evidence isn’t sufficient to state a claim,” the deputy county counsel said.Baldwin said that one of the deputies said during the search that, “There is no Prop. 215 in Placer County.” Baldwin referred to “hostility to Prop. 215 endemic to the Placer County Sheriff’s Department.”Deputy Ron Goodpaster stated in a declaration filed last November that Baldwin asserted he had a right to grow more than 100 marijuana plans because of a doctor’s recommendation complying with Prop. 215.Goodpaster said he responded, “That might fly in the Bay Area but not here.”The comment was intended to let Baldwin know he had violated California marijuana cultivation laws and that officers were not going to just turn around and leave, Goodpaster said.The deputy said he is willing to comply with Prop. 215 but that boundaries of the law were not clear when Baldwin’s home was searched.“There is a substantial danger of abuse by persons purporting to cultivate marijuana for medical reasons but actually growing it for sale,” Goodpaster added.Deputy Jeff Potter was also involved in the 1998 search of the Loomis home. In a November declaration, Potter said outcomes of jury trials involving Baldwin as well as Steve Kubby, former Libertarian candidate for governor, convinced him it’s difficult to convict marijuana growers who have doctor’s recommendations for medical use of the drug.“Even if I believe that probable cause exists to arrest the grower for sales because of the number of plants, presence of objects associated with sales and so forth, I am unlikely to arrest unless the District Attorney’s Office indicates to me that it will prosecute the case,” Potter said. The deputy added that when Baldwin was arrested “I did not then — and still do not now —believe that 146 plants is consistent with medical use of marijuana.”Placer County District Attorney Brad Fenocchio said Friday that many issues are considered when deciding whether to file cases, including what a reasonable jury will do. It may be more difficult now to convict someone possessing substantial amounts of marijuana and doctor’s authorization for the drug than it was 10 years ago, the District Attorney said.“That does impact officers,” Fenocchio said. “We’re going to listen to what officers say on a case-to-case basis.”The D.A.’s office considers not just the quantity of the drug but other factors as well — such as scales, packaging of the drug and other issues normally associated with marijuana dealing, Fenocchio said.Source: Auburn Journal (CA)Author: Ryan McCarthy, Journal Staff WriterPublished: Sunday, January 25, 2004Copyright: 2004 Auburn JournalContact: dericr goldcountrymedia.comWebsite: http://www.auburnjournal.com/Related Articles & Web Site:Kubby Defense Fundhttp://www.kubby.org/We're At War ... Against Sick Americans http://cannabisnews.com/news/thread11085.shtmlKubby Files $200 Million Lawsuit http://cannabisnews.com/news/thread10134.shtml

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Comment #4 posted by Richard Paul Zuckerm on January 26, 2004 at 06:26:42 PT:

LAWSUITS MAY SEND A MESSAGE
Lawsuits may send a message, even if they are dismissed. We should consider filing under the State Constitution, rather than the United States Constitution. First of all, in at least a few States, there is vicarious liability against public entities, which means that when one policeman violates your State Constitutional Right, then the entire public entity is liable as well. Second of all, there is more opportunity to obtain punitive damages in State courts for State Constitutional Torts. Third of all, there is less immunity given to police officers under the State Constitution than under the Federal Constitution. FEDERAL CIVIL RIGHTS LITIGATION IS BULLSHOOT!!!I'm suing under the State Constitution, rather than the Federal Constitution! My case, entitled Richard Paul Zuckerman, Plaintiff vs. Borough of Highland Park, and others, Defendants, Docket Number MID-L-3743-00, presided over by The Honorable Nicholas J. Stroumtsos, Jr., J.S.C., (Telephone number)(732) 981-3102. This lawsuit arose as a direct result of the Highland Park Public Library, (Telephone number)(732) 572-2750, "policy" of a three minute time limit on the public pay telephone, even when nobody is waiting to use the phone, and concomitant arrest by 3 Highland Park policemen for refusal to produce identification, and a COMPLETELY FABRICATED "disorderly conduct" charge. I have a motion scheduled for February 3, 2004, asking for change of venue, to be presided over by the Civil Assignment Judge, Hon. Amy Piro Chambers, (Telephone)(732) 981-3008 or 3009 (One of them; The correct number slips my memory, offhand). Also scheduled is a February 20th, 2004, motion to amend the complaint to assert FRAUD and to expedite this case to trial. If huge punitive damages can be imposed upon the liar Tobacco companies, then why can't huge punitive damages be imposed upon liar police departments? As the panel stated in Perez v. Z Frank Oldsmobile, Inc., 223 F.3d 617, 621 (7th Cir. 2000), headnotes 5 and 6:
"Frauds often escape detection, and the need to augment deterrence of concealable offenses is a principal justification of punitive damages...Optimal deterrence is achieved when damages equal the harm done by the wrong, divided by the probability of detecting the injury and prosecuting the cliam...For example, if a wrong causes $5,000 injury and is redressed one time in five, the optimal damages are $25,000." How many times is police perjury redressed? One in 10? How many people give up and plead guilty with the "Its my word against theirs...You can't fight City Hall!"?? I happen to be fortunate to have unusually stupid cops who not only have contradicted themselves in material ways, they either did not file a police report or the only police report only contains a one sentence detail of probable cause of "When w/m was escorted to the door the w/m was asked to produce identification and became 'violent and abusive.'" As Judge Lumpkin said in Miller v. Cotton, 5 Ga. 341, 349 (1848), of why certain contracts must be put into writing:
"How frail and fallible is memory! History records a few examples, of men of whom it may be said, that whatever knowledge they acquired, either sensible or intellectual, remained as indelibly fixed upon their minds, as if it was engraved on a rock. Seneca reports of Hortensius, that he coudl repeat at night, the prices and purchasers of every article sold at auction throughout the day; and of himself, that he repeated two thousand names in the same order in which they were spoken to him;p and it is told of Cyrus, that he could salute all the soldiers in his vast army by their names, respectively; and of an Englishman, that he recited verbatim, one of Voltaire's great poems, from having heard it read once by its author to Frederick of Prussia. But these are rare instances. Usually, the impressions made on the memory resemble much more the traceless track of the arrow through the air, than the enduring hieroglyphics upon the pyramids and obelisks of ancient Egypt. May memories are mere seives. And I would sooner trust the smallest slip of paper for truth, than the strogest and most retentive memory ever bestowed on mortal man. I once preferred a claim in behalf of one of the frontier settlers of middle Georgia, for revolutionary services, rendered as a guide to the American army in its retreat before Corwallis. He was a preacher of the gospel, and one of the best men I ever knew, and so reported and esteemed among all his acquaintances; but it was pretty well ascertained, that he was at the time several miles distant from the theatre of his fancied achievement. Things are told to persons, till they verily believe that they witnessed them; and we repeat events until we are ready to swear in the utmost sincerity, that we are spectators of their occurrence." "Reportilying" and "Testilying" are used by police to increase the chance of conviction. See Proving the Lie: Litigating Police Credibility, by David N. Dorfman, Assistant Professor of Law, Pace University School of Law, 78 North Broadway, White Plains, New York, 10603, (Telephone number)(914) 422-4195, Ddorfman Law.Pace.Edu, Volume 26, American Journal of Criminal Law, 455, 460, footnote 19, 491 [Summer 1999]. I have their discrepancies from the written municipal court complaints, the police report, the Grand Jury transcript (They refused to indict me!), answers to interrogatories, and municipal court trial transcript. One good case on "reportilying" is Gaugher v. Hendle, 349 F.2d 354, 358 (7th Cir. 2003)("...[I]f police falsify their reports in a successful effort to persuade the prosecutors to presecute a suspect, they have violated his civil rights and he can sue the police without worrying about immunity."). The most recent example is Hamre v. City Of Bothell, 81 Fed.Appx. 260 (9th Cir. Washington 2003)(Material issues of fact existed as to whether police officer violated homeowner's First Amendment rights by retaliating against homeowner for homeowner's use of insulting language in ordering officer off his premises through alleged fabrication of police report about incident and filing of false charges against homeowner, precluding summary judgment on homeowner's First Amendment claims against officer and city). Lawsuits can serve to deter police misconduct.Richard Paul Zuckerman, Box 159, Metuchen, N.J., 08840-0159, (Cell phone)(908) 403-6990, richardzuckerman2002 yahoo.com.
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Comment #3 posted by Commonsense on January 25, 2004 at 18:18:25 PT

JustGetnBy
JustGetnBy:This Baldwin fellow was either really stupid, or he was growing for more than just personal use. Think about it. The man was smart enough to get accepted to and make it through dental school. Why would he grow SOG style knowing that the higher the plant count the more trouble he could get into? He could have grown SCROG or supercropped or used some other method for getting the most out of a lower plant count. He was growing an awful lot of plants. Let's think about this for a minute. Say he had ten mother plants for cuttings and the rest were clones either in vegetative state or flowering. He could expect to get at least 7 grams or so from small plants grown four per square foot. That would give him over two pounds every two or three months, much more if he was using other methods to grow or giving his plants more room to grow. So even if we totally give this guy the benefit of the doubt, he was growing more than any one person could possibly smoke.  You are smart for trying to stick to a low plant count. Medical users who keep the numbers down and lay low and are way less likely to have problems than those who have to go crazy with it and grow way more than they could possibly smoke by themselves. The people who go way overboard are just begging for trouble. Never sell never tell.
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Comment #2 posted by JustGetnBy on January 25, 2004 at 16:14:20 PT

Too Many Plants!
Commonsense  I know exactly what your saying, and that is my first reaction when I read an article like this. BUT.........
... If you are growing many small plants ( SOG ) you would have between 40 and fifty plants in vegetative stage to replace the 40 to 50 plants you have in flower. This growing system does not provide any more usable medicine per crop than growing a few large plants, but you do not have to vegetate your plants for 8-16 weeks. On an annual basis you will get several more crops than the few large plant grow.  I don't know how skilfull or lucky other growers are, but if I need 6 plants to flower, I take 8 to 12 cuttings.  If growing SOG I would keep two mother plants for each variety I grew. I also like to keep two strains on hand for med use. One for daytime use that allows me to function at an appropriate level to interact with the world, and another for bedtime, to deal with my pain, and allow me to get a night sleep.  I don't grow SOG style, just because of the legal problems that it would bring me if by chance fate put me into the Nazi's hands.  I agree with you in principle, but just wanted to point out that there are sound horticultural and production reasons for such a plant count.  Although with the current administrations JackBooted tactics regarding medical cannabis I'de take a nap in the fast lane B4 I would be caught with that many plants.  Be Safe, be kind, be carefull
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Comment #1 posted by Commonsense on January 25, 2004 at 10:48:25 PT

Why grow 146 plants?
Every time I read one of these stories I can't help but wonder why people are so stupid. Don't get me wrong, I am 150% for legalizing marijuana. But I just don't get why people have to abuse the system they are lucky enough to have in California. People are always pushing the envelope, growing way more than they need, and then they whine and fain like victims when they get nailed for it. I'm sorry but I just can't feel that sorry for stupid people, especially the greedy ones. 
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