Arcata’s 4/20 tactics ruled legal, so lawsuit goes up in smoke

Kevin L. Hoover
Mad River Union

ARCATA – The City of Arcata's stoner-encumbering tactics to keep Redwood Park accessible for non-smokers on April 20 have been ruled legal by a federal judge, who has dismissed as unfounded a lawsuit against the city.

The city was sued last October by plaintiff Gregory Allen, president of the Redwood Chapter of the American Civil Liberties Union and former director of Humboldt Medical Cannabis Center. He alleged that his constitutional rights and those of others had been violated by measures the city took to end what had been a mass gathering in Redwood Park on 4/20.

Greg Allen

Greg Allen

For years, the 4/20 celebration drew thousands of cannabis enthusiasts from all over the country to the park, but no one applied for any permits, or provided insurance, security or sanitation. Citing public safety concerns, cost to the city and the truckloads of trash hauled away in the days following each year's event – plus the environmental damage to Redwood Park and the Arcata Community Forest – and other 4/20-related impacts, the city began clamping down.

Beginning in 2010, tactics included a large Arcata Police presence, restricted parking and signs warning that all smoking laws would be enforced. Under the Arcata Municipal Code, smoking is prohibited in any city park that has a children's playground. The park remained open for non-smokers, and eventually others, including families with children, gradually returned. By 2014 the city declared 4/20 a broken tradition.

But last fall, Allen and Eureka attorney Peter Martin filed suit against the City of Arcata, Arcata Police Chief Thomas F. Chapman and former City Manager Randal J. Mendosa, stating that they unlawfully framed a five-year plan in late 2009-early 2010 to close Redwood Park and block the annual 4/20 jubilee.

As stated in a Union story at the time, the suit alleged that the defendats' actions constituted “an unlawful conspiracy” to deprive Allen and thousands of other 4/20 participants of their constitutional rights to free speech, peaceable assembly and petition for redress of grievances, the lawsuit states. It declared: “This political activity is entitled to the highest protection under the First Amendment.”

 U.S. District Judge James Donato didn't agree that the Constitution had been impinged in any way. In a ruling delivered Monday, July 13, he dismissed the case "with prejudice," meaning that the ruling is a final determination on the merits of the case, and that Allen can't file another lawsuit on the same grounds.

In an uncommonly wry and pun-rich decision, Donato roundly dismisses and even somewhat disparages Allen's claims as without merit, and says he had no standing to file the suit. It casts the city's 4/20 enforcement as a "mild" effort "to "harsh the mellow of the gathering."

States the decision, "the complaint fails because Allen has not alleged facts sufficient to establish standing to sue." Even though lawsuits alleging First Amendment violations are given more latitude, the judge cites case law that states plaintiffs "must still satisfy 'the rigid constitutional requirement that plaintiffs must demonstrate an injury in fact to invoke a federal court's jurisdiction."

Continues the ruling, "This Allen has failed to do. Nothing in the complaint alleges any facts showing an actual or threatened First Amendment injury to Allen, or injury of any kind. In relation to the 4/20 events stated in the complaint, he does not challenge a statute, law or ordinance as unconstitutional restrictive or overlord. He was not arrested, cited or ticketed. He was not denied a permit or license. He was not threatened with prosecution or any adverse state action of any kind. He was not singled out for any police monitoring or harassment."

The decision acknowledges that Allen was "appalled" by witnessing police officers asking people if their dogs were licensed, but says that he didn't prove that warding away 4/20 celebrants caused him any First Amendment injury.

Donato also cites California law defining statutes of limitations, noting that the last time Allen attended a 4/20 event was in 2010 and that the lawsuit was filed in 2014 – twice the two-year statute of limitations. The decision skewers Allen for a "vague and unpersuasive effort to invoke a 'continuing violations' theory to excuse his untimeliness."

"This leaves Allen holding an empty bag," concludes the judge.

As far as the dismissal with prejudice, Donato says that his court usually leaves complaints open to amendment, but that in this case, "the facts alleged in the complaint show definitively that Allen does not have any injury sufficient for standing and cannot allege new facts to show that he does."

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4 Comments

  1. Pingback: Allen appeals 4/20 lawsuit, states city should run, promote cannabis celebration ‘to make plaintiff whole’ | Mad River Union

  2. So Kali said:

    ACLU does a great deal of good and in this case, failed miserably.

    Who among us is Perfect?

    I thank the ACLU for their good works and their failures, like this here
    tempest in a teapot, is hardly important enough to notice.

  3. Egg Beaters said:

    It is interesting how simple it is to “create a park” first, and then later “create a children’s playground” in that park in order to create an ordinance banning smoking in all of the park and outside of the children’s playground. So now, if smokers are to be ostracized, simply use children as the tools to ban smokers from the greater areas of the park by ordinance, using a miniscule portion of the park (ie. Children’s playground) to outlaw smokers from all other areas of the greater park boundaries.

    Is the park just one big children’s playground?

    How far away, by ordinance, does smoke need to be so as to not be subjecting “children” to inhaling smoke?

    Or, is it a visual thing for as far as any eye can witness?

    Permits are never needed for individuals who “just show up”, regardless of the unsanctioned street slang used to describe 420 day.

    Non smokers and smokers ALL have rights too, so this decision does nothing to clear up the muddied water.

    Attack the ordinance for not providing alternatives for smokers to use “other areas of the greater park without permit during the same uses of a children’s park.”

    The decision makes the appearance that if smoking is to be “outlawed”, create more parks with children’s playgrounds.

    Parks exist at first creation of its boundaries, then comes the creation of certain zones of a park, one being children’s playgrounds.

    The park “in disputed question” is not one large children’s playground.

    Time for non smoking adults onsite (who are really smokers offsite) to sack the children’s playground by using it so much in voluminous support that children can’t. Then, when popo tries to arrest an adult using a children’s playground as any child would use that playground, the question becomes,

    “Where is the adult playground located that needs no permit since children are not forced to get a permit for a children’s playground.”

    Fair is fair!

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