Court Upholds Grow Bans in Fresno County

For the second time this year, a California court has upheld Fresno County’s notorious ban on marijuana cultivation.

County Superior Court Judge Carlos Cabrera recently dismissed a lawsuit against Fresno County officials filed earlier this year by the ACLU. Cabrera gave the plaintiffs 60 days to decide whether they want to pursue two related claims in Superior Court or appeal to the Fifth District Court of Appeal.

The ACLU sued both the county and the City of Fresno over their grow bans. It is now illegal to grow marijuana outdoors in Fresno or anywhere in unincorporated Fresno County.

“The basic question in our case is whether the county and city can effectively ban the cultivation of medical marijuana even though state law allows seriously ill patients to cultivate marijuana for medical use,” said Michael Risher, senior staff attorney for the California branch of the ACLU.

Cabrera dodged a bigger legal question: Whether county officials can get a so-called “civil inspection” warrant to search private property for evidence of cultivation.

Civil inspection warrants allow cops or other authorities to search property for civil violations, and unlike criminal search warrants, they don’t require probable cause. Unfortunately, courts have given authorities wide berth in using these warrants, despite the fact that they’re often used to search for criminal evidence – in blatant violation of the Fourth Amendment to the Constitution.

Cabrera didn’t answer that looming constitutional question. Sadly, it’s unlikely the plaintiffs will prevail on that issue, either.

The ACLU filed the suit in May on behalf of two local medical marijuana patients, Jane Byrd and Susan Juvet. Neither woman plans to grow cannabis unless the court gives them approval, Risher said.

“They have no intention of breaking the law and being cited,” he said. “What they want is for the [court] to say the ordinance doesn’t apply to them because it violates state law. We brought these suits so our clients could cultivate medicine without breaking the law.”

Cabrera also dismissed a second, earlier suit that said the cultivation ban violated state law. The plaintiffs have filed an appeal.

Fresno County levies a massive fine of $1,000 per plant on violators. Appeals of those fines are overseen by the county supervisors, and that means it’s unlikely any will succeed.

Recent decisions by other California courts don’t bode well for the chances of an appeal. The appellate court that covers Northern California ruled earlier this year that municipalities may ban cultivation within their boundaries.

An earlier ruling by the California Supreme Court allows local governments to prohibit medical marijuana dispensaries, so this ruling could mean an end to medical pot in Fresno County – and likely in other parts of the state as well.

“The county’s medical marijuana ordinance has already been held by the Superior Court in the Kriby case to be valid and enforceable,” said Dan Cederborg, lawyer for Fresno County. “It is difficult to see how the current plaintiffs in the Byrd case have a chance of prevailing on similar legal issues that have already been resolved by the Superior Court in the county’s favor.”