A federal judge should not move a Hayden man's medicinal marijuana case to federal court because the U.S. Attorney's Office asked for such action too late and because officers involved should follow state, not federal law.
That message is the thrust of a response filed in U.S. District Court on Wednesday by Steamboat Springs attorney Kristopher Hammond, who represents Hayden resident Don Nord.
The case being heard by U.S. District Court Judge Walker Miller in Denver involves whether police officers who seized marijuana from Nord, a registered medicinal marijuana user, and did not return it as ordered by a state judge should be held in contempt of court.
The case has highlighted conflicting state and federal laws. According to a voter-approved rule, Colorado allows use of marijuana for medicinal purposes. Under federal rules, the drug is illegal for everyone.
In his response, Hammond argued that the U.S. Attorney's Office's attempt to remove the case to federal court because a county court did not rule in its favor is not allowed by any statute or principle of law.
"By seeking removal, (the defendants) are trying for a 'second bite at the apple' after they lost in state court," his response states. "That kind of abuse of removal has been attempted, recognized, and prohibited for more than 110 years."
Another argument in Hammond's response is that the officers did not act "under color of federal authority," but instead are trying "to reinvent themselves as 'federal agents' in an effort to evade the contempt citation, and to obtain a second bite at the apple after losing in state court."
One of the officers involved in the raid was a federal agent, while the others were local officers who were deputized to serve on the Grand, Routt and Moffat Narcotics Enforcement Team, a federal task force.
Task force officers either act as state or federal officers and cannot be both at the same time, Hammond argues. Because they were executing a state search warrant when they found Nord's drugs, they were wearing their "state hats" and so couldn't be acting simultaneously as federal officers.
Hammond also argues that the U.S. Attorney's Office's request for removal was filed too late. The 30-day time limit to ask for removal starts as soon as the defendant can intelligently tell the case will need to be removed, and so should have happened before the case was heard and decided by a state judge in November and December.
Hammond argues the defendants waived their right to remove the case because they initiated the case in state court, used the state court's authority to get a search warrant and bring charges against Nord, and continued in state court after Nord asked his property be returned.
The U.S. Attorney's Office has argued that the officers were doing their job by following federal law, and that according to the U.S. Constitution's Supremacy Clause, federal law overrides state law when the two are in conflict.
After reading Hammond's response and a response from the U.S. Attorney's Office, which should be filed by Feb. 17, Judge Miller will decide whether the case should be heard in a federal court.
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