In this Schmidt v County of Nevada 7/19/11 Memorandum and Order, Judge Damrell granted the defendants' motion to dismiss Jon-Cory Schmidt's complaint with prejudice on all claims resulting from a raid on his medical marijuana grow in 2009:
Jon-Cory Schmidt sued the county and the Sheriff's Office alleging his due process and equal protections rights had been violated, after a raid on his medical marijuana grow in September 2009. The case, which was filed in U.S. District Court in Sacramento in October 2010, was dismissed Tuesday.
Schmidt alleged that he was in lawful possession of medical cannabis under medical recommendations issued by licensed California physicians at the time of the raid, that he had had a scrip for marijuana since 1998 and had been growing medical marijuana on that property since 2004. He said in the complaint that he was cultivating a collaborative garden in the 15000 block of Long Point Road that contained 80 immature marijuana plants on the day of the raid.
The suit alleged that after obtaining a search warrant, members of the Narcotics Task Force and a federal agent raided the property on Sept. 22, 2009, illegally cutting and seizing the marijuana plants. The deputies also allegedly took 10 pounds of marijuana, shake and cola, as well as a handgun and other items.
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U.S. District Judge Frank C. Damrell Jr. dismissed Schmidt's complaint Tuesday, ruling that under federal law, it is “illegal for any private person to possess marijuana. Thus, under federal law, marijuana is contraband per se, which means that no person can have a legal interest in it.
“In this case, plaintiff cannot recover damages because of the confiscation or destruction of marijuana because he had no ... property interest in the marijuana,” Damrell wrote, pointing to the fact that California courts had twice ruled he was not in lawful possession of the marijuana.