No Taking When Sheriff Took His (Medical) Weed

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Robert Thomas
Robert Thomas

BY ROBERT THOMAS – Here’s one to add to the “unusual takings cases” category, at which we looked at last week.

In  Young v. Larimer County Sheriff’s Office, No. 13CA1338 (Sep. 11, 2014), the sheriff raided Mr. Young’s (medical) marijuana grow and seized as evidence “forty-two mariijuana plants by cutting them off just above the roots.”


Now, we don’t know much of anything about the botany of the cannabis plant, medical or otherwise. And the court might not have any specialized knowledge either. But it doesn’t take Cheech and Chong to know that “[t]his action killed the plants.” Slip op. at 2. Bummer, man.

The jury was more kind to Mr. Young than was the sheriff. It bought Young’s claim that his weed was not evidence, but medicine under the Colorado medical marijuana statute. The “jury acquitted him of all charges based on the affirmative defense of medical use of marijuana by a person suffering from a debilitating medical condition.” Id. As a consequence, the court ordered under Colorado law that all of the evidence which the sheriff seized was to be returned to Mr. Young, including the plants.

The beginning of the next sentence of the opinion tells you where this one was heading. “After the dead plants were returned … ”

Young brought an action for damages on the basis that the deputies killed the plants, which were now worthless. He asserted two claims. The first was under 42 U.S.C. § 1983 that the sheriff, acting under color of state law had impaired Young’s federal rights. Among the rights which he claimed the sheriff violated? You guessed it, the right to just compensation for the taking of his property, his weed. We noted that in a somewhat similar situation a couple of years ago that “thank goodness they didn’t raise a takings claim,” but now the court was confronted with it. Second, that the seizure violated the Colorado Constitution’s takings clause.

Both the trial court and the court of appeals agreed there was no section 1983 taking because Young’s dope isn’t property. Yes, it is recognized as property under Colorado law, but this is not a property interest that the feds need recognize, especially when marijuana is still illegal under federal law. Thus, no federal right was violated, thus no section 1983 claim. An easy case.

But, as we noted yesterday, federal law isn’t the last word on takings when a property owner raises a claim under the state constitution, and the court needed more in-depth analysis in order to reach the same “no taking” result. The court first determined the taking wasn’t a private taking, because it was the seizure of evidence for a criminal prosecution, and the court rejected Young’s argument that the taking was “for public use.”

The focus of the analysis, however, was on the line of cases which hold that there is no taking because a seizure for evidentiary purposes is within the government’s police powers and thus not a taking. See Amerisource Corp. v. United States, 525 F.3d 1149 (Fed. Cir. 2008). Young’s acquittal didn’t change the result, the court held, and it ruled no taking. An exercise of the police power cannot be a taking.

Does that rationale hold up? We have our doubts, although we must admit that it is somewhat appealing at least on the surface. While the result in this and similar cases seems vaguely correct, when we get into detail, we can’t quite come up with a good reason why that is so. After all, when the government exercises its police powers in a way that results in a physical seizure of property that’s not only a taking, it’s a taking per se. Why that result should be different when the police power is employed to investigate alleged crime, we’re not sure.

One of these days, the Supreme Court is going to get this issue and let us know.

Young v. Larimer County Sheriff’s Office, No. 13CA1338 (Colo. App. Sep. 11, 2014)

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