Allen, et al v. County of Lake, et al

Filing 26

ORDER Denying 5 Plaintiffs' Request for Temporary Restraining Order by Judge Thelton E. Henderson; Parties to meet and confer and file stipulation or joint statement re: briefing schedule by 9/12/2014. (tehlc2, COURT STAFF) (Filed on 9/4/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MONA ALLEN, et al.,

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Plaintiffs,
v.

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COUNTY OF LAKE, et al.,

Case No. 14-cv-03934-TEH
ORDER DENYING PLAINTIFFS'
REQUEST FOR A TEMPORARY
RESTRAINING ORDER

Defendants.

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Plaintiffs Mona Allen, et al., seek a temporary restraining order (“TRO”) to enjoin

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United States District Court
Northern District of California

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Defendants County of Lake, et al., from engaging in what Plaintiffs allege to be

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unconstitutional abatement actions against growers of medicinal marijuana in the County

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of Lake. September 1, 2014 Amended Application for a Temporary Restraining Order

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(Docket No. 5). On September 2, 2014, this Court heard the oral arguments of both parties

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concerning the issuance of a TRO. Upon the Court’s request, Plaintiffs filed a

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supplemental brief on the issue of irreparable harm absent a TRO. September 3, 2014

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Supplemental Brief (Docket No. 24). After carefully considering Plaintiffs’ submissions

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and the oral arguments of both parties, the Court now DENIES the application for a

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temporary restraining order for the reasons set forth below.

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I.

LEGAL STANDARD
In order to obtain a TRO, Plaintiffs must establish that: (1) they are likely to

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succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of a

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TRO; (3) the balance of equities tips in their favor; and (4) the issuance of the TRO is in

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the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)

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(setting forth standard for preliminary injunction); Lockheed Missile & Space Co., Inc. v.

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Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995) (“The standard for issuing

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a temporary restraining order is identical to the standard for issuing a preliminary

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injunction.”). A stronger showing on one of these four elements may offset a weaker

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showing on another, but the movant must nonetheless “make a showing on all four

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prongs.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011).

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II.

DISCUSSION
Plaintiffs Have Not Proven the Likelihood of Irreparable Harm

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Plaintiffs put forward two theories of the irreparable harm they would suffer in the

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absence of a TRO. First, they claim that the loss of a sense of security from the raids that

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have already occurred constitutes an ongoing irreparable injury, demanding the relief of a
temporary restraining order. September 3, 2014 Supplemental Brief at 2-3 (Docket No.

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United States District Court
Northern District of California

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24) (“[P]laintiffs have alleged that the unconstitutional violations implicated by this suit

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. . . instilled fear in the plaintiffs and all citizens of Lake County.”). In the alternative,

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Plaintiffs suggest that their property will be unconstitutionally seized in the future, either

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for the first or second time. See id. at 3 (arguing that a pattern or practice can be used to

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show that violations “can recur with respect to any of the individually named plaintiffs or

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the members of [California NORML]”). Because the Court finds neither argument

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persuasive, the application for a temporary restraining order is denied.

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A. Mere Loss of Security Does Not Justify a TRO in This Case

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Plaintiffs have not produced a single case holding that the loss of security resulting

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from a previous violation of constitutional rights is itself an irreparable injury requiring

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injunctive relief. In any event, such a case would contradict the Supreme Court decision of

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City of Los Angeles v. Lyons, 461 U.S. 95 (1983). In that case, in the context of whether

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the victim of a police chokehold had pled a sufficient injury for standing purposes, the

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Court explained that “It is the reality of the threat of repeated injury that is relevant to the

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standing inquiry, not the plaintiff's subjective apprehensions.” Id. at 107 n.8 (emphasis in

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original).

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In their supplemental briefing, Plaintiffs point to cases in which a pattern or practice
of constitutional violations was found to be sufficient to constitute irreparable injury for
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purposes of a TRO or preliminary injunction. See Melendres v. Arpaio, 695 F.3d 990,

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1002 (9th Cir. 2012); LaDuke v. Nelson, 762 F.2d 1318, 1326 (9th Cir. 1985). However,

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in those cases, the courts did not find that the irreparable injury was the mere loss of

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security that follows the deprivation of a constitutional right; rather, the irreparable injuries

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were unlawful detention (Melendres, 695 F.3d at 994) and warrantless farm inspections

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(LaDuke, 762 F.2d at 1321). And in both cases, the plaintiffs succeeded because they

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could show a likelihood that these specific injuries would be repeated in the future.

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Melendres, 695 F.3d at 1002; LaDuke, 762 F.2d at 1324. (“[T]he district court in this case

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made a specific finding of likely recurrence.”)

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It is true that one district court in a different district granted a preliminary injunction

United States District Court
Northern District of California

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after finding that “exposure to [an unconstitutional] policy is both itself an ongoing harm

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and evidence that there is ‘sufficient likelihood’ that Plaintiffs' rights will be violated

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again.” Ortega-Melendres v. Arpaio, 836 F. Supp. 2d 959, 979 (D. Ariz. 2011). However,

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in affirming the injunction on appeal, the Ninth Circuit did not endorse the idea that

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“exposure to a policy” is “itself an ongoing harm”; rather, the court of appeals held that the

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district court did not abuse its discretion in concluding “Plaintiffs faced a real possibility

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that they would again be stopped or detained and subjected to unlawful detention on the

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basis of their unlawful presence alone.” 695 F.3d at 990.

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Plaintiffs also rely on International Union of Bricklayers and Allied Craftsmen v.

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Meese, 616 F. Supp. 1387 (N.D. Cal. 1985), a case in which union members challenged the

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federal government’s grant of foreign worker visas under the relatively lenient B-1 visa

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category, rather than the more stringent H-2 category. However, nothing in that case

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suggests that the loss of a sense of security following a violation of one’s rights constitutes

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irreparable injury for purposes of injunctive relief. The injuries alleged by the plaintiff

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union members in International Union of Bricklayers were the deprivation of the

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opportunity to compete for employment on bricklaying projects, and the denial of the labor

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certification process protections of the H-2 temporary worker visa category. 616 F. Supp.

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at 1394. These are primarily economic injuries, concerning the plaintiffs’ ability to
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compete for and obtain jobs, rather than an abstract sense of insecurity. Moreover, the

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court in that case denied plaintiffs’ request for a temporary restraining order, and limited

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its preliminary injunction to apply to the group of foreign workers that were working on a

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bricklaying project at the time. Id. at 1393. This is a further indication that the court

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granted the preliminary injunction in order to protect the ability of the union workers to

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compete for a specific project, rather than to maintain their “sense of security” in a more

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general sense.

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B. Plaintiffs Have Not Shown a Likelihood of Future Injury

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Plaintiffs also suggest that additional raids would constitute an irreparable injury.
Plaintiffs are required to put forward some evidence so that the Court can conclude that

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United States District Court
Northern District of California

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such future injuries are likely. Lyons, 461 U.S. at 111. One way in which likelihood of

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future injury can be shown is if the policy is officially endorsed by the government.

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Melendres, 695 F.3d at 1002; LaDuke, 762 F.3d at 1324. An individual’s experience of

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repeated and ongoing violations can also provide support for the likelihood of irreparable

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harm absent injunctive relief. NORML v. Mullen, 608 F. Supp. 945, 962 (N.D. Cal. 1985).

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Attempting to show that the possibility of future raids constitutes an irreparable

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harm, Plaintiffs cite NORML, id. Plaintiffs’ Amended Application at 19-21 (Docket No.

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5). In that case, the District Court granted a preliminary injunction against the

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unconstitutional use of helicopters and warrantless searches as part of a public campaign

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against marijuana cultivation known as the “Campaign Against Marijuana Planting”

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(“CAMP”). Id. at 945. Raids on marijuana growers by CAMP authorities involved the

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publicly-acknowledged practice of entering neighboring properties without a warrant,

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ostensibly to protect against potential threats to the raiding agents. Id. at 953-53.

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Importantly, CAMP policy explicitly included the practice of returning repeatedly each

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season until growers “thr[e]w in the towel.” Id. at 962. As a result, the plaintiffs in

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NORML were subjected to unconstitutional CAMP activities, including low-flying

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helicopters and invasive searches, on a repeated basis. Id. at 957. The district court noted

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that because “the effectiveness of the CAMP program rest[ed] in part on its perseverance
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in returning to the same areas from season to season, the probabilities [were] high that the

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plaintiffs in [that] case [would] suffer injury for years to come.” Id. at 962. It was because

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of this explicit policy of repeating the alleged constitutional injury that the court found the

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plaintiffs entitled to injunctive relief. Id.

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The case before the Court is highly distinguishable. Unlike in NORML, Plaintiffs
have provided no evidence that Lake County intends to conduct additional searches or

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seizures against the named or Doe Plaintiffs. Mere speculation about the intentions of the

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County is not enough. Importantly, the Ordinance in this case, unlike the CAMP policy in

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NORML, does not explicitly rely upon “returning to the same areas” with the objective of

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tiring out targeted growers. Further, Plaintiffs have neither alleged nor demonstrated that

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United States District Court
Northern District of California

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they have been subjected to the unconstitutional activities repeatedly. Assuming Plaintiffs’

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allegations are true, the identified Plaintiffs have already lost their marijuana plants and

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had their privacy invaded. Absent additional evidence, Plaintiffs’ fear of prospective

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police intrusion appears to be little more than “subjective apprehensions,” rather than “the

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reality of the threat of repeated injury.” See Lyons, 461 U.S. at 107 n. 8. Ultimately, the

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“emotional consequences of a prior act simply are not a sufficient basis for an injunction

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absent a real and immediate threat of future injury by the defendant.” Id. Without some

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evidence that Defendants’ might violate the Constitutional rights of Plaintiffs in the next

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fourteen days, a TRO is unjustified.

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Similarly, Plaintiffs err in their reliance on Blair v. Pitchess, 5 Cal. 3d 258 (1971).

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In Blair, the California Supreme Court determined that a preliminary injunction was

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necessary to prevent the irreparable harm resulting from warrantless seizure of property

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without notice in accordance with California’s claim and delivery law. In that case,

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however, the plaintiffs had standing to sue, and faced irreparable harm absent an

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injunction, because they were Los Angeles County residents relying on the state’s taxpayer

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standing provision. Id. at 269-70. As a result, some plaintiffs faced the actual threat of

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having their property unconstitutionally seized absent an injunction. The same cannot be

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said of Plaintiffs in this case. Here, Plaintiffs’ counsel has failed to identify a single
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resident of Lake County that is a Plaintiff to this action and under threat of having their

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marijuana plants summarily abated absent a TRO. Consequently, unlike in Blair, a TRO

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provides no legally cognizable relief to Plaintiffs and is therefore improper.

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The importance of the problematic conduct being both officially authorized and

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likely to be repeated was crucial to the decisions on which Plaintiffs rely in their

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supplemental brief. LaDuke, 762 F.3d at 1324 (“[T]he district court in this case made a

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specific finding of likely recurrence . . . [and] explicitly found that the defendants engaged

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in a standard pattern of officially sanctioned officer behavior.”); Thomas, 978 F.2d at 509

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(“The record in this case does not yet contain a sufficient basis on which to evaluate the
likelihood of the plaintiffs’ succeeding on the merits in establishing, not merely

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United States District Court
Northern District of California

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misconduct, but a pervasive pattern of misconduct reflecting departmental policy.”).

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Plaintiffs’ mere identification of these cases and reliance on the declarations already

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submitted is insufficient to show either that Defendants have an official policy authorizing

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the behavior complained of, or that any individual plaintiff is likely to be harmed again

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anytime soon. Regarding the first prong, Plaintiffs contend that “The crux of this case[] is

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not about the arbitrary limitations of Measure N, but, rather, is about the arbitrary and

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unconstitutional way that it is being enforced.” Amended Complaint at ¶ 9 (Docket No.

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4). At oral argument, Plaintiffs were unable to clearly answer whether Ordinance 2997

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authorizes the alleged conduct, or rather whether the defendant officers were acting ultra

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vires. Without Plaintiffs more fully articulating this aspect of their claim, the Court cannot

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find that the problematic behavior was officially authorized, and therefore that Plaintiffs

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face a “real possibility” that they will be raided again.

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Moreover, Plaintiffs have not yet put forward sufficient evidence to find a

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probability of future irreparable harm. For those plaintiffs who have already been raided,

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there is no evidence that they will be raided again anytime soon; the natural inference is

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that they will not be, unless marijuana plants grow exceedingly quickly. And Plaintiffs

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have not identified any individual among them who has not yet been raided, nor any

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evidence suggesting that the raid of such a person’s property is “likely.” In short,
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Plaintiffs have not given the Court enough to decide that they face a likelihood of

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irreparable harm absent a TRO. Plaintiffs therefore have not met the requirements for the

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issuance of a TRO.

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III.

CONCLUSION
Plaintiffs’ application for a temporary restraining order is DENIED. The parties

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shall meet and confer on a briefing and hearing schedule on Plaintiffs’ motion for a

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preliminary injunction and file a stipulation and proposed order, or a joint statement setting

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forth their areas of agreement and disagreement, on or before September 12, 2014.

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United States District Court
Northern District of California

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IT IS SO ORDERED.

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Dated: 09/04/2014

_____________________________________
THELTON E. HENDERSON
United States District Judge

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