DISTRICT COURT, COUNTY OF LARIMER, COLORADO 201 La Porte Avenue, Suite 100 Fort Collins, Colorado 80521-2761 970-498-6100

__________________________________________ KALEB YOUNG, an individual, Plaintiff, v. LARIMER COUNTY SHERIFFS OFFICE, a local governmental entity; SHERIFF JUSTIN SMITH, in his official capacity as LARIMER COUNTY SHERIFF; DETECTIVE PETE MESECHER, in his individual capacities,

DATE FILED: April 3, 2013 0:15 PM FILING ID: CD08DA5E

COURT USE ONLY _______________________ Case Number: 12CV1997 Div: 4A Ctrm:

Defendants. __________________________________________ Attorneys for Plaintiffs: Robert J. Corry, Jr. #32705 Travis B. Simpson #43858 600 Seventeenth Street Suite 2800 South Tower Denver, Colorado 80202 303-634-2244 telephone 720-420-9084 facsimile Robert.Corry@comcast.net travisbsimpson@gmail.com RESPONSE TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT Plaintiff Kaleb Young, through undersigned counsel, hereby respectfully submits his Response to Defendants Motion for Summary Judgment, thereby requesting that the Court deny Defendants Motion for failure to establish that there is no genuine issue as to any material fact and that Defendants are entitled to a judgment as a matter of law, and in support thereof, state as follows;

I.

Nature of the Case Kaleb Young is a Colorado resident who suffers from debilitating medical

conditions. Mr. Youngs Colorado-licensed physician recommended that he treat the symptoms of his medical conditions through the use of medical marijuana. Mr. Young was cultivating his own medical marijuana on September 22, 2010. Furthermore, on September 22, 2010, Mr. Young was also cultivating medical marijuana for numerous other Colorado medical marijuana patients for which he was a primary caregiver pursuant to Colorado Constitution Article XVIII 14. On September 22, 2010, officers of the Larimer County Sheriffs Office, including Defendant Pete Mesecher (Mesecher), without checking with the Colorado Department of Health and Environment Medical Marijuana Registry to determine if the marijuana they suspected was being cultivated at Plaintiffs residence was medical marijuana, executed a search warrant on Plaintiffs two residences in unincorporated Larimer County. During the search, officers seized 42 live medical marijuana plants, raw medical marijuana, medical marijuana ingestion implements and medical marijuana cultivation equipment. The 42 medical marijuana plants were cut at the base of the stem, leaving the dirt and roots in the containers. The plants (consisting of the cut off stems and leaves) were placed in plastic bags and booked into evidence at the Larimer County Sheriffs Office. Plaintiff was charged with Cultivation of Marijuana, C.R.S. 18-18406(7.5)(c), Possession with Intent to Manufacture or Distribute MarijuanaLess
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than Five Pounds, C.R.S. 18-18-406(6)(b)(I), and (III)(A), and Possession of MarijuanaMore than Twelve Ounces, C.R.S. 18-18-406(4)(c). Plaintiff raised the affirmative defense of Medical Use of Marijuana by Persons Suffering from Debilitating Medical Conditions, Colorado Constitution Article XVIII, Section 14(4)(b) as well as other defenses related to the medical use of marijuana. Following a jury trial on November 23, 2011, Plaintiff was acquitted of all charges based on his affirmative defense. As a result of the acquittal, all items seized by Sheriffs officers were returned to Plaintiff on December 2, 2011, including the dried and withered stems and leaves of the 42 medical marijuana plants. Upon return of his damaged property, Plaintiff suffered damages due to Defendants failure to maintain the plants pursuant to Colorado Constitution Art. XVIII 14(2)(e). Plaintiff brings this case to recover the value of the 42 medical marijuana plants destroyed while in the possession and custody of the Larimer County Sheriffs Office. II. Standard for Summary Judgment Summary Judgment is a "drastic remedy" to be granted only on a clear showing that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. KN Energy, Inc. v. Great Western Sugar Co., 698 P.2d 769, 776 (Colo. 1985). The movant has the burden of establishing the absence of triable issues of fact. Churchey v. Adolph Coors Co., 759 P.2d 1336, 1340 (Colo. 1988), and the non-movant "must receive the benefit of
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all favorable inferences that may be reasonably drawn from the undisputed facts," Mancuso v. United Bank of Pueblo, 818 P.2d 732, 736 (Colo. 1991). An order granting summary judgment is reviewed de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Bd., 901 P.2d 1251, 1256 (Colo. 1995). An order denying summary judgment is interlocutory in nature and not subject to review. Manuel v. Fort Collins Newspapers, Inc., 631 P.2d 1114, 1116-17 (Colo . 1981). Summary judgment is proper only when the pleadings, affidavits, depositions, or admissions establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c). The moving party has the burden to establish that no genuine issue of material fact exists, and any doubt should be resolved in favor of the nonmoving party. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251, 1256 (Colo.1995). III. Genuine Issues as to Material Facts Defendants claim, through the factual assertions in their pleadings and statements and admissions made by the Defendants and Plaintiffs during the course of the limited discovery conducted in this action, that there is no genuine issue as to the facts. However, the interpretations and the conclusions presented in the following facts support the Plaintiffs claims, not the Defendants. 1. Defendants claim that [b]ased on information available to him,

Mesecher believed marijuana was being grown at these residences in violation of

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Colorado criminal statutes. (Defendants Brief in Support of Motion for Summary Judgment). However, Mesecher did not check with the Colorado Department of Health and Environments Confidential Medical Marijuana Registry (Registry) to determine if Kaleb Young was a medical marijuana patient. (Affidavit of Kaleb Young, Para. 1). 2. The Registry is a constitutionally-created database that exists

specifically to allow law enforcement officers to determine if a suspect is authorized to possess or cultivate medical marijuana before the officer effectuates an arrest or search and seizure; 3) The state health agency shall create and maintain a confidential registry of patients who have applied for and are entitled to receive a registry identification card according to the criteria set forth in this subsection, effective June 1, 1999. (a) No person shall be permitted to gain access to any information about patients in the state health agency's confidential registry, or any information otherwise maintained by the state health agency about physicians and primary care-givers, except for authorized employees of the state health agency in the course of their official duties and authorized employees of state or local law enforcement agencies which have stopped or arrested a person who claims to be engaged in the medical use of marijuana and in possession of a registry identification card or its functional equivalent, pursuant to paragraph (e) of this subsection (3). Authorized employees of state or local law enforcement agencies shall be granted access to the information contained within the state health agency's confidential registry only for the purpose of verifying that an individual who has presented a registry identification card to a state or local law enforcement official is lawfully in possession of such card. Colo. Consti. Art. XVIII 14(3)(a).

3.

The information establishing that Plaintiff was a medical marijuana

patient and caregiver was available to Mesecher before he drafted affidavits in support of search warrants on September 14, 2010 for properties being rented to Young at 12669 North County Road 5, Wellington, CO and 5228 East Harmony Road, Timnath, CO. (Affidavit of Kaleb Young, Para. 2). 4. With the exclusion of the available information from the Registry

showing that Plaintiff was a medical marijuana patient and caregiver, Larimer County Court Judge Cynthia Hartman found probable cause sufficient to issue Search Warrants for Youngs County Road 5 and Harmony Road properties on September 14, 2010. (Affidavit of Pete Mesecher, Para. 6). 5. On September 22, 2010, the search warrants were executed.

(Complaint, Paragraph 8). 6. Upon execution of the search warrants, medical marijuana

documentation was found in Plaintiffs residence. (Affidavit of Kaleb Young, Para. 3). Specifically, the following documentation was recovered by Larimer County Sheriffs Office agents and placed into evidence; Photocopy of Medical Marijuana Registry Application Form / KALEB YOUNG Photocopy of Medical Marijuana Registry / KALEB YOUNG Photocopy of Medical Marijuana Registry Application Form / CHRIS THOMPSON Photocopy of Medical Marijuana Registry / CHRIS THOMPSON Photocopy of Colorado Identification Card / CHRISTOPHER THOMPSON Photocopy of Medical Marijuana Registry Application Form / DANIEL GURRERO Photocopy of Medical Marijuana Registry / DANIEL GURRERO Photocopy of Colorado Instruction Permit / DANIEL GURRERO Photocopy of Medical Marijuana Registry Application Form / MICHAEL
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WRIGHT (2 copies) Photocopy of Medical Marijuana Registry / MICHAEL WRIGHT (2 copies) Photocopy of Arizona Driver's License / MICHAEL WRIGHT (2 copies) Photocopy of Colorado Temporary Document Driver's License / MICHAEL WRIGHT (2 copies) Photocopy of Medical Marijuana Registry Application Form / ALFRED BARKER Photocopy of Medical Marijuana Registry / ALFRED BARKER Photocopy of Colorado Driver's License / ALFRED BARKER Photocopy of Medical Marijuana Registry Application Form / DAVID GALLEGOS Photocopy of Medical Marijuana Registry / DAVID GALLEGOS Photocopy of Colorado Driver's License / DAVID GALLEGOS Photocopy of Medical Marijuana Registry Application Form / LORENZO CASIAS Photocopy of Medical Marijuana Registry / LORENZO CASIAS Photocopy of Colorado Identification Card / LORENZO CASIAS Photocopy of Medical Marijuana Registry Application Form / GARY CAMPBELL Photocopy of Medical Marijuana Registry / GARY CAMPBELL Photocopy of Colorado Driver's License / GARY CAMPBELL Photocopy of Medical Marijuana Registry Application Form / LUIS HASSEY Photocopy of Medical Marijuana Registry / LUIS HASSEY Photocopy of Colorado Identification Card / LUIS HASSEY Photocopy of Medical Marijuana Registry Application Form / PAMELA SHAW Photocopy of Medical Marijuana Registry / PAMELA SHAW Photocopy of Colorado Driver's License / PAMELA SHAW Photocopy of Medical Marijuana Registry Application Form / VALERIE LOVATE Photocopy of Medical Marijuana Registry / VALERIE LOVATE Photocopy of Colorado Identification Card / VALERIE LOVATE Photocopy of Medical Marijuana Registry Application Form / ROBERT WHITNEY Photocopy of Medical Marijuana Registry / ROBERT WHITNEY Photocopy of Colorado Driver's License / ROBERT WHITNEY Photocopy of Medical Marijuana Registry Application Form / DAVID COLEMAN Photocopy of Medical Marijuana Registry / DAVID COLEMAN Photocopy of Colorado Driver's License / DAVID COLEMAN Photocopy of Medical Marijuana Registry Application Form / TONI PENSONPEREZ Photocopy of Medical Marijuana Registry / TONI PENSON-PEREZ Photocopy of Colorado Driver's License / TONI PENSON-PEREZ
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Photocopy of Medical Marijuana Registry Application Form / OPHELIA GALLEGOS Photocopy of Medical Marijuana Registry / OPHELIA GALLEGOS Photocopy of Colorado Driver's License / OPHELIA GALLEGOS (Plaintiffs Exhibit 1). 7. After recovering this bulk of medical marijuana documentation,

Larimer County Sheriffs Office agents cut down all 42 of the medical marijuana plants; the plants were cut at the base of the stem, leaving the dirt and roots in the containers. The plants (consisting of the cut off stems and leaves) were placed in plastic bags and booked into evidence. (Affidavit of Pete Mesecher, Para. 10; Complaint Paragraph 11). 8. Plaintiff was arrested and booked at the Larimer County Detention

Center. Upon booking, a medical marijuana application was recovered from Plaintiffs wallet. (Affidavit of Kaleb Young, Para. 4) After this documentation was recovered by Mesecher and placed into evidence, Mesecher prepared an affidavit for warrantless arrest of Young. (Plaintiffs Exhibit 1). 9. Mesecher was the lead investigator on this case and assisted in

processing the evidence that was collected from 5228 East Harmony Road, including medical marijuana documents, medical marijuana ingestion devices, medical marijuana and other documents, and the evidence collected at 12669 North County Road 5, including live medical marijuana plants, grow lights, ballasts, medical marijuana literature, medical marijuana ingestion devices, and

processed medical marijuana. (Affidavit of Kaleb Young; Para. 5; Plaintiffs Exhibit 1). 10. Because the marijuana plants were cut at the bases, they wilted and

died within a matter of hours of being in the possession and control of the Larimer County Sheriffs Office. (Affidavit of Pete Mesecher, Para. 11). 11. While Karen Mianecki states accurately that Mr. Young returned to

and was present at the County Road 5 property on September 28, 2010, there are no allegations in Ms. Mianeckis affidavit that Mr. Young was aware that his medical marijuana plants were dead and that law enforcement officers with the Larimer County Sheriffs Office had failed to maintain his medical marijuana plants pursuant to their obligations under Colorado Constitution Article XVIII 14(2)(e). (Affidavit of Karen Mianecki Exhibit). Even if Plaintiff was aware that his plants were likely dead, he did not have the right to have his medical marijuana plants returned to him pursuant to Colorado Constitution Article XVIII 14(2)(e) until after he was acquitted of criminal charges and his plants were returned to him in a damaged state. (Affidavit of Kaleb Young, Para. 6). 12. Plaintiff was charged with Cultivation of Marijuana, C.R.S. 18-18-

406(7.5)(c), Possession with Intent to Manufacture or Distribute MarijuanaLess than Five Pounds, C.R.S. 18-18-406(6)(b)(I), and (III)(A), and Possession of MarijuanaMore than Twelve Ounces, C.R.S. 18-18-406(4)(c). (Complaint, Paragraph 12). 13. Plaintiff raised the affirmative defense of Medical Use of Marijuana
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by Persons Suffering from Debilitating Medical Conditions, Colorado Constitution Article XVIII, Section 14(4)(b). (Complaint, Paragraph 13). 14. On or about April 29, 2011, Plaintiff filed a Motion to Dismiss all

criminal charges based on the immunity provided by Colorado Constitution Article XVIII, Section 14(4)(b). (Affidavit of Kaleb Young, Para. 7). 15. On June 7, 2011, the Court denied the Motion to Dismiss. The Court

found, Based upon Article XVIII, Section 14 of the Colorado Constitution, Colorado statutes and the evidence presented at the hearing, there are a number of different scenarios under which the prosecution could claim that [Defendant Youngs] possession and cultivation of marijuana was not legal under the medical marijuana law. . . . (Plaintiffs Exhibit 2). Therefore, even at this stage of the criminal proceedings, Plaintiff was not able to avow himself of the protections of Colorado Constitution Article XVIII 14(2)(e) and have his medical marijuana plants returned to him and could not have suffered damages as a result of the seizure and destruction of his medical marijuana plants. 16. A jury trial on the criminal charges against Plaintiff was commenced

on November 21, 2010. During the trial, the 42 marijuana plants seized on September 22, 2010 were taken from the Sheriffs Office to the Larimer County Courthouse and entered into evidence. (Affidavit of Pete Mesecher, Para. 18). 17. On November 23, 2011, Plaintiff was acquitted of all charges based

on his affirmative defense of Medical Use of Marijuana by Persons Suffering from Debilitating Medical Conditions, Colorado Constitution Article XVIII, Section
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14(4)(b). (Complaint, Paragraph 13). At this point, Plaintiff could avow himself of the protections of Colorado Constitution Article XVIII 14(2)(e) and have his medical marijuana plants returned to him. 18. On November 25, 2011, the Court ordered property seized by

Larimer County Sheriffs Office be returned to Young. (Plaintiffs Exhibit 3). 19. On December 2, 2011, the 42 medical marijuana plants were

returned to Plaintiff by the Larimer County District Court staff. (Affidavit of Kaleb Young, Para. 6). At this point, Plaintiff suffered significant damages because the medical marijuana plants that were returned to him were destroyed, dead, and useless. (Affidavit of Kaleb Young, Para. 6). 20. On June 1, 2012, Plaintiff mailed a Notice of Claim to County

Attorney, George Hass, by certified mail a Notice of Claim pursuant to the Colorado Governmental Immunity Act (GIA). C.R.S. 24-10-109 et seq. (Plaintiffs Exhibit 4). IV. A. Argument Plaintiffs Section 1983 Claim Is Not Barred By The Statute Of

Limitations. The statute of limitations for 1983 claims is Colorados two-year personal injury statute, C.R.S. 13-80-102(1)(i). Blake v. Dickason, 997 F.2d 749, 50-51 (10th Cir. 1993); Arvia v. Black, 722 F.Supp. 644 (D. Colo. 1989). Federal law governs the determination of when a 1983 action accrues. Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir.1995). A 1983 action accrues when facts that would
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support a cause of action are or should be apparent. Fratus v. DeLand, 49 F.3d 673, 675. Defendants allege that Plaintiffs action accrued at the latest on September 28, 2010. However, Plaintiffs attempts to prove his authorization to possess and cultivate the 42 medical marijuana plants at issue in this case could not have been fruitful until a jury acquitted him of all charges on November 23, 2011. On or about April 29, 2011, Plaintiff filed a Motion to Dismiss all criminal charges based on the immunity provided by Colorado Constitution Article XVIII, Section 14. (Plaintiffs Exhibit 2). Had the Court granted this motion, Plaintiff would have immediately been authorized under Colorado Constitution Art. XVIII 14(2)(e) to obtain the property seized by the Larimer County Sheriffs Office in conjunction with his case; Marijuana and paraphernalia seized by state or local law enforcement officials from a patient or primary care-giver in connection with the claimed medical use of marijuana shall be returned immediately upon the determination of the district attorney or his or her designee that the patient or primary care-giver is entitled to the protection contained in this section as may be evidenced, for example, by a decision not to prosecute, the dismissal of charges, or acquittal. Colo. Consti. Art. XVIII (14)(2)(e). However, On June 7, 2011, the Court denied the Motion to Dismiss. Therefore, as late as June 7, 2011, Plaintiff was not authorized under the Colorado Constitution to have his property returned to him and, therefore, the facts that would support a cause of action were not apparent.

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Once Plaintiff proceeded to trial and was acquitted of all charges, he was then authorized under the Colorado Constitution Article XVIII 14(2)(e) to have all of his medical marijuana plants returned to him. When Plaintiff received his dead and useless medical marijuana plants on December 2, 2011, Plaintiff was comprised of the knowledge that law enforcements officers from the Larimer County Sheriffs Office had not complied with the requirements of Colorado Constitution Article XVIII 14(2)(e), and that he was entitled to have his medical marijuana plants returned to him, thereby supporting a cause of action for the loss of his property. Therefore, the two-year statute of limitations began tolling after December 2, 2012, and Plaintiffs 1983 claim has been brought within the twoyear statute of limitations. B. Plaintiff States A Section 1983 Claim For Denial Of Due Process In

Violation Of The Fourteenth Amendment. Plaintiffs claim for denial of due process violations of the Fourteenth Amendment is governed by the Fourth Amendment protections against search and seizure. Mesecher, through his Affidavit for Search Warrant, stated the facts that he believed supported criminal activity and grounds to search Youngs County Road 5 property and seize evidence. However, Mesecher failed to check the Registry to determine if Plaintiff was a medical marijuana patient or caregiver and authorized to cultivate and possess medical marijuana. The Court found Mesechers Affidavit established probable cause and issued the Search Warrant due to the fact that
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Mesecher intentionally omitted information that was available to him through the Registry that would have negated a finding of probable cause. Mesechers affidavit would be devoid of probable cause absent this omission. The Fourth Amendment to the U.S. Constitution and Colorado Constitution Article II, Section 7 mandates an evidentiary hearing when there is a substantial preliminary showing that the affiant deliberately or with reckless disregard for the truth included falsehoods, misstatements, or omissions in the warrant affidavit and these falsities were necessary to the finding of probable cause. Franks v. Delaware, 438 U.S. 154 (1978). Therefore, Plaintiff was entitled to notice and a hearing before his medical marijuana plants were seized and destroyed. Plaintiff was not afforded all the process he was due under the Fourth Amendment in the criminal action and his 1983 claim pursuant to the Fourteenth Amendment stands. C. Plaintiff States A Section 1983 Claim For Deprivation Of Liberty In

Violation Of The Fourteenth Amendment. In 1983 cases, it is particularly important that the complaint make clear exactly who is alleged to have done what to whom, to provide each with fair notice as to the basis of the claims against him or her, as distinguished from collective allegations against the state. Robbins v. Oklahoma, 519 F.3d 1242, 1249-50 (10th Cir. 2008). 42 U.S.C. 1983 states;

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Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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 42 U.S.C. 1983.

Individuals are protected from loss of liberty without due process of law under the Fourteenth Amendment to the United States Constitution and Colorado Constitution Article II 25, and it is difficult to characterize an affected interest as a "liberty" or "property" interest. State By and Through Colorado State Claims Bd. of Div. of Risk Management v. DeFoor, 824 P.2d 783, 794 (Colo. 1992)(Chief Justice Rovira specially concurring); See also Morgan v. Mansfield, 569 F.Supp. 710, 713 (D.Colo.1983). The Supreme Court has held that the term "liberty" should be granted broad meaning and that it "denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized ... as essential to the orderly pursuit of happiness by free men." Id.; quoting Board of Regents of State Colleges v. Roth , 408 U.S. 564, 572, 92 S.Ct. 2701, 2706-07, 33 L.Ed.2d 548 (1972) (citation omitted).

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Plaintiff has suffered a deprivation of his liberty interests due to Defendants destruction of his medical marijuana plants because the destruction of these plants has deprived Plaintiff of his freedom to remain free from bodily harm stemming from the symptoms of his debilitating medical conditions for which he used the medical marijuana he was cultivating. See Daniels v. Williams, 474 U.S. 327, 341, 106 S.Ct. 677, 679, 88 L.Ed.2d 662 (1986). Therefore, Plaintiff suffered a deprivation of his liberty in violation of the Fourteenth Amendment to the United States Constitution and Colorado Constitution Article II 25. D. Plaintiff States A Section 1983 Claim For A Taking In Violation Of

The Fifth Amendment and Colorado Constitution Art. II Section 15. The Fifth Amendment of the United States Constitution and Colorado Constitution Article II 15 provides that private property shall not be taken or damaged, for public or private use, without just compensation. Plaintiffs medical marijuana plants were private property seized under the Fourth Amendment as evidence of a crime to be used in a public criminal proceeding. It is well established that the accused in a criminal case has the right to a public trial. Anderson v. People, 490 P.2d 47, 48, 176 Colo. 224, 226 (Colo. 1971); See U.S. Const. Amend. VI; Colo.Const. Art. II, 16, 25; Thompson v. People, 156 Colo. 416, 399 P.2d 776 (1965). The Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319 (1977). Plaintiffs medical marijuana plants were
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seized in order to be used by the prosecution, on behalf of the People of the State of Colorado, to be presented in a public trial in order to prove that Plaintiff violated the Uniform Controlled Substances Act of 1992 (USCA), specifically C.R.S. 18-18-406. The Colorado State legislature enacted the USCA because regulation of controlled substances in this state is important and necessary for the preservation of public safety and public health. C.R.S. 18-18-401(1)(a). Therefore, Plaintiffs medical marijuana plants were seized to preserve public safety and public health. Then, Plaintiffs medical marijuana plants were publically presented during his trial and used for the public purpose of prosecuting Plaintiff on behalf of the People of the State of Colorado, otherwise known as the public. Plaintiffs medical marijuana plants were clearly taken for public use and Plaintiff has received no compensation. Therefore, Plaintiff suffered a violation of his Fifth Amendment right guaranteeing that his private property would not be taken for public use without just compensation, as well as his rights under Colorado Constitution Art. II 15, which makes no distinction between public and private use of Plaintiffs property. E. Plaintiffs Section 1983 Claims Against Defendant Mesecher In His

Individual Capacity Are Not Barred For Lack Of Personal Participation. The personal involvement of one allegedly denying constitutional rights under color of state law is an essential element of a civil rights claim against him.

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Bennett v. Passic, 545 F.2d 1260, 1262 (10th Cir. 1994), citing Battle v. Lawson , 352 F. Supp. 156 (W.D. Okl. 1972). Defendant Mesecher orchestrated every aspect of the investigation against Plaintiff, including but not limited to, the search and seizure of Plaintiffs medical marijuana plants. Specifically, Defendant Mesecher; 1. interviewed a citizen informant who lived in the area of 12669 North County Road 5 in Wellington, Colorado, regarding suspicious activity that was going on at 12669 North County Road 5; 2. observed the residence and gray shop on the property of 12669 North County Road 5 from the public roadway and neighboring properties; 3. talked to Alex Otero who is the owner of the property at 12669 North County Road 5; 4. conducted surveillance at 5228 East Harmony Road in Timnath, Colorado; 5. contacted Dispatch for the Colorado State Patrol and requested to have Plaintiffs pickup stopped; 6. went to 12669 North County Road 5 and attempted to contact and identify Plaintiff; 7. contacted an employee of Poudre Valley REA to get the utility records for 12669 North County Road 5 in Wellington, Colorado; 8. conducted a computer check via the Internet of the Larimer County Assessor property information for the property tax year 2010 for Plaintiffs property; 9. contacted a representative of First Bank of Wheat Ridge to see if they had an account name of Dry Ground LLC, Plaintiffs company;

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10. requested information from the Department of Labor for a work history for the wages reported by Plaintiff; 11. met with County Court Judge Cynthia Hartman North County Road 5 and 5228 East Hannony Road. Both of the warrants were signed by Judge Hartman. Defendant Mesecher made copies of the warrants and attached them to his report; 12. instructed members of the Larimer County Sheriffs Office executed search warrants at 12669 North County Road 5 in Wellington, Colorado, and 5228 East Harmony Road in Timnath, Colorado; 13. responded to the Larimer County Detention Center to fill out an Affidavit in Support of Warrantless Arrest and booking Information on Plaintiff; 14. assisted in processing evidence that was collected from 12669 North County Road 5 in Wellington, Colorado, and 5228 East Harmony Road in Timnath, Colorado, including Plaintiffs medical marijuana plants. (Plaintiffs Exhibit 1). Defendant Mesecher was intimately involved in every aspect of Plaintiffs case from the initial contact with an anonymous informant to serving as advisory witness for the prosecution during Plaintiffs trial. The only action Mesecher failed to perform was to check the Registry to determine whether Plaintiff was a registered medical marijuana patient and caregiver. Mesecher lead the investigation against Plaintiff and was thereby responsible for the destruction of Plaintiffs medical marijuana plants during the search and seizure he coordinated. Therefore, Plaintiffs 1983 claims against Defendant Mesecher in his individual capacity are not barred for lack of personal participation.

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F.

Plaintiffs Section 1983 Claims Against Defendant Mesecher In His

Individual Capacity Are Not Barred By Qualified Immunity. In an action under 1983, a plaintiff must first establish an individual defendant violated a federal law or the United States Constitution. Even if a violation is established, a defendant may be entitled to qualified immunity. Individual defendants are entitled to qualified immunity unless it is demonstrated that their alleged conduct violates clearly established constitutional rights of which a reasonable person in their positions would have known. Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238,1251 (10th Cir. 1999). The inquiry is an objective one, focused on whether the officers actions [were] objectively reasonable in light of the facts and circumstances confronting them, without regard to underlying intent or motivation. Weigel v. Broad, 544 F.3d 1143, 1151 (10th Cir. 2008). Defendant Mesechers actions were not objectively reasonable given that he checked nearly every private and public agencys records regarding Plaintiff except for the Colorado Department of Public Health and Environments Medical Marijuana Registry. Had Defendant Mesecher performed this simple action, he could have easily verified that Plaintiff was authorized to cultivate the amount of medical marijuana that he was cultivating on September 22, 2010. Furthermore, a wealth of medical marijuana documentation was present on Plaintiff and at his properties, thereby informing officers, including Mesecher, than Plaintiff was

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cultivating marijuana for medical use under Colorado Constitution Art. XVIII 14. Plaintiff satisfies the initial burden of showing that a defendant has violated a clearly established Colorado State law, Colorado Constitution Art. II 15 and Colorado Constitution Art. XVIII 14(2)(e). Furthermore, Defendant Mesecher cannot show that his actions were objectively reasonable in light of his extensive experience with Colorados medical marijuana law and the information he possessed at the time of his actions. Albright v. Rodriguez, 51 F.3d 1531, 1534-35 (10th Cir. l995); Salmon v. Schwarz, 948 F.2d 1131, 1136 (10th Cir. l991). Therefore, Plaintiffs 1983 claims against Defendant Mesecher in his individual capacity are not barred by qualified immunity. 1 G. Plaintiff States A Section 1983 Entity Claim Against The Sheriffs

Office And Against Justin Smith And Pete Mesecher In Their Official Capacities. The government as an entity is responsible under 1983 when the execution of a governments policy or custom inflicts the injury. Monell v. Department of Social Services of City of New York, 436 U.S. 658, 694-695, 98 S.Ct. 2018 (1978). The Larimer County Sheriffs Offices policy was to cut down marijuana plants, even if there was evidence that the plants were for medical use pursuant to Colorado Constitution Article XVIII 14.
1

For further argument on why the Governmental Immunity Act is inapplicable, see Section J of the Argument section of this Response to Defendants Motion for Summary Judgment. 21

To sustain an entity or official capacity liability claim for 1983 violations, the plaintiff must show: (1) the existence of a municipal custom or policy; and (2) a direct causal link between the custom or policy and the violation alleged. Anaya v. Crossroads Managed Care Systems, Inc., 195 F.3d 584, 592 (10th Cir. 1999) (quoting Hollingsworth v. Hill, 110 F.3d 733, 742 (10th Cir. 1997)). Defendant Mesecher states that he did not instruct officers to cut down Plaintiffs medical marijuana plants. (Pete Mesecher Affidavit, Para. 8). However, officers still destroyed Plaintiffs medical marijuana plants, regardless of where the cut was made on the plant. The officers were acting pursuant to Larimer County Sheriffs Office policies and procedures when they executed the search warrants on Plaintiffs properties. Officers with the Larimer County Sheriffs Office routinely destroy marijuana plants that they think are illegal and nonmedical. (Affidavit of Kaleb Young, Para 6). While operating under these policies and procedures, officers located medical marijuana paperwork and also cut down the medical marijuana plants they found in Plaintiffs residence. The destruction of the 42 medical marijuana plants in violation of the Colorado Constitution was the result of the Larimer County Sheriffs Offices custom, policy, or procedure of cutting down marijuana plants that they think are illegal. Pete Mesecher did not believe that the marijuana in this case was medical. (Affidavit of Pete Mesecher, Para. 4). Therefore, pursuant to Larimer County Sheriffs Offices custom and/or policy, officers destroyed Plaintiffs medical marijuana plants. This policy directly caused the constitutional violations alleged by Plaintiff.
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H.

There Is A Private Right Of Action For Violation Of Colorado

Constitution Article XVIII, Section 14(2)(e). Defendants argue that the critical question in whether the Colorado Constitution Article XVIII 14 implicitly creates a private right of action is whether the drafters of the law intended such a result. Colorado Constitution Article XVIII 14 is a constitutional amendment that was approved by Colorado voters in November of 2000 and enacted in January 2001. Defendants references to the Medical Marijuana Code and case law interpreting private rights of action based on statutory violations are misplaced. Colorado Constitution Article II 15 does not expressly create a private right of action. However, the purpose of inserting the word "damaged" into this section was to add an additional right of action. City of Pueblo v. Strait, 20 Colo. 13, 19, 36 P. 789, 791 (1894). Likewise, the addition of the word destroyed to Colorado Constitution Article XVIII 14(2)(e) creates an additional right of action. Colo. Consti. Art. XVIII 14(2)(e). The Medical Marijuana Code expressly does not apply to patients and caregivers acting pursuant to Colorado Constitution Article XVIII 14. C.R.S. 12-43.3-103(2)(e); 12-43.3-104(8). Plaintiff was a patient and caregiver acting pursuant to Colorado Constitution Article XVIII 14 and not a licensee pursuant to the Medical Marijuana Code. Therefore, the Medical Marijuana Code is inapplicable to Plaintiff and its failure to add an express remedy for the seizure of medical marijuana from a state-licensed medical marijuana center or optional
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premises cultivation facility, as well as the Colorado Court of Appeals decision in Giuliano v. Jefferson County , --- P.3d ---, 2012 WL 5360940 (Colo. App.), is irrelevant to whether Plaintiff, an individual medical marijuana patient and caregiver and not a medical marijuana center or optional premises cultivation facility licensee, may recover against a government agency that intentionally destroyed his medical marijuana plants in derogation of Colorado Constitution Article XVIII 14(2)(e) and Colorado Constitution Article 15. I. Plaintiffs State Law Claim Under The Colorado Constitution Article

XVIII, Section 14(2)(e) Is Not Barred By The Statute Of Limitations. C.R.S. 13-80-103 provides, The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, shall be commenced within one year after the cause of action accrues, and not thereafter: *** (c) All actions against sheriffs, coroners. police officers, firefighters, national guardsmen, or any other law enforcement authority. . . . C.R.S. 13-80-103(1)(c). The term sheriff is used in its generic sense and includes the whole class of officers performing the duties of the office of sheriff and includes deputy sheriffs. Bailey v. Clausen , 192 Colo, 297, 557 P.2d 1207 (1976). Defendants allege that Plaintiffs action accrued at the latest on September 28, 2010. However, Plaintiffs attempts to prove his authorization to possess and cultivate the 42 medical marijuana plants at issue in this case could not have been

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fruitful until a jury acquitted him of all charges and he was presented with his destroyed property on December 2, 2011. Plaintiff was required to proceed to trial and be acquitted of all charges before he was able to be authorized under the Colorado Constitution Article XVIII 14(2)(e) to have all of his medical marijuana plants returned to him. It was not until Plaintiff received his dead and useless medical marijuana plants on December 2, 2011 that Plaintiff was comprised of the knowledge that law enforcement officers from the Larimer County Sheriffs Office had not complied with the requirements of Colorado Constitution Article XVIII 14(2)(e), thereby supporting a cause of action for the destruction of his property. Therefore, Plaintiffs claim under the Colorado Constitution Article XVIII, Section 14(2)(e) accrued on December 2, 2011. Plaintiff was required by C.R.S. 13-80-103 to file his claim under the Colorado Constitution Article XVIII, Section 14(2)(e) within 365 days from December 2, 2011. 365 days after December 2, 2011 is Saturday December 1, 2012. Pursuant to C.R.C.P. 6(a); In computing any period of time prescribed or allowed by these rules, the day of the act, event, or default from which the designated period of time begins to run shall not be included. Thereafter, every day shall be counted, including holidays, Saturdays or Sundays. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. The "next day" is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.

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C.R.C.P. 6(a). Since, in this case, the cutoff date falls on a Saturday, the Complaint was to be filed by Monday December 3, 2012. Plaintiff filed his Complaint on December 3, 2012. Therefore, Plaintiffs claim under the Colorado Constitution Article XVIII, Section 14(2)(e) has been brought within the one-year statute of limitations. J. Plaintiffs State Law Claim Under The Colorado Constitution Article

Xviii, Section 14(2)(e) Is Not Barred By The Colorado Governmental Immunity Act. There is a private right of action for enforcement of Article XVIII, Section 14(2)(e). However, should the Court determine that Plaintiffs claim could lie in tort, the GIA still does not apply to Plaintiffs claims. The GIA, on its face, appears to preclude any claim that "lies in tort or could lie in tort" from being pursued against a public entity unless such claim is within certain specified exceptions. However, other constitutional and statutory provisions also authorize legal actions against either the state or one or more political subdivisions for injuries sustained under circumstances not described in 24-10-106(1) of the GIA. The most notable other instance in which the state has authorized a suit for damages is that in which private property is taken or damaged by the state or a political subdivision and compensation is required to be paid under Colo. Const. Art. II, 15. Conners v. City of Colorado Springs , 962 P.2d 294, 296 (Colo.App. 1997); citing Hayutin v. Colorado State Department of
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Highways, 175 Colo. 83, 485 P.2d 896 (1971), cert. denied, 404 U.S. 991, 92 S.Ct. 533, 30 L.Ed.2d 542 (1971). Plaintiffs claim under Colorado Constitution Art. XVIII 14(2)(e) is more akin to a replevin claim rather than a claim for conversion or negligence. In the case of Desert Truck Sales v. City and County of Denver, Plaintiff sued under a theory of replevin after a Denver police officer impounded its 1976 Rolls Royce automobile. The trial court determined that, because the replevin action sounded in tort, GIA was applicable and, because Plaintiff had not given proper notice as required by 24-10-109, dismissed the complaint. Desert Truck Sales, Inc. v. City and County of Denver, 821 P.2d 860, 861 (Colo.App. 1991). The Court of Appeals disagreed and found that; Plaintiff's complaint alleged that its personal property had been wrongfully confiscated and detained. Therefore, it was an action based on conversion. See Glenn Arms Associates v. Century Mortgage & Investment Corp., 680 P.2d 1315 (Colo.App.1984), which is an action in tort. See Ferguson v. Turner, 69 Colo. 504, 194 P. 1103 (1921); See also Montgomery Ward & Co. v. Andrews, 736 P.2d 40 (Colo.App.1987). Thus, plaintiff's claim would appear to be within the scope of the Act. However, certain causes of action even though they lie, or could lie, in tort are excluded from the coverage of the Governmental Immunity Act. See Jorgenson v. City of Aurora, 767 P.2d 756 (Colo.App.1988); Jones v. Northeast Durango Water District, 622 P.2d 92 (Colo.App.1980); Srb v. Board of County Commissioners, 43 Colo.App. 14, 601 P.2d 1082 (1979). In Srb v. Board of County Commissioners, supra, we held that a claim for property damage under Colo. Const. Art. II, 15, which prohibits the government from taking private property for public or private use without just compensation, is not within the coverage of the Act. We noted that this constitutional clause creates an exception
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to the doctrine of governmental immunity, see Board of County Commissioners v. Adler, 69 Colo. 290, 194 P. 621 (1920), and, since the purpose of the constitutional provision is to provide a remedy for injury to private property inflicted by the government, it is remedial in nature and must be liberally construed. Accordingly, we concluded that, since the claim at issue there arose under the constitutional just compensation clause, it was not subject to the provisions of the Governmental Immunity Act. Desert Truck Sales, Inc., 821 P.2d at 861-62. Similarly to Desert Truck Sales and Srb v. Board of County Commissioners, Plaintiffs claims are for property damage under Colo. Const. Art. II, 15 and Colorado Constitution Art. XVIII 14(2)(e). These constitutional provisions prohibit the government from taking or damaging private property for public or private use without just compensation. Furthermore, C.R.S. 24-10-109 does not apply to claims for civil rights violations. See Mucci v. Falcon Sch. Dist., 655 P.2d 422 (Colo. App. 1982); Barrack v. City of Lafayette, 829 P.2d 424 (Colo. App. 1991); Conners v. City of Colo. Springs, 962 P.2d 294 (Colo. App. 1997), aff'd, 993 P.2d 1167 (Colo. 2000). Therefore, Plaintiffs claims are not within the coverage of GIA and are not subject to the notice requirements of C.R.S. 24-10-109. PRAYER FOR RELIEF Wherefore, Plaintiffs respectfully request that the Court deny Defendants Motion for Summary Judgment, and for all just and proper relief. Dated this 3rd day of April, 2013

Respectfully Submitted,

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/s/ Travis B. Simpson Travis B. Simpson Robert J. Corry, Jr.

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on April 3, 2013, a true and correct copy of the foregoing RESPONSE TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT was filed and served via ICCES to the following: George H. Hass Jeannine S. Haag William G. Ressue 224 Canyon Ave. Suite 200 Post Office Box 1606 Fort Collins, Colorado 80522 Tel: (970) 498-7450 ghass@larimer.org jeanninehaag@larimer.org wressue@larimer.org /s/ Travis B. Simpson

In accordance with C.R.C.P. 121 1-26(9), a printed copy of this document with original signatures is being maintained by the filing party and will be made available for inspection by other parties or the Court upon request.
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