BRANDON BAKER, Rev., Plaintiff, v. THE STATE OF COLORADO, and COLORADO ATTORNEY GENERAL, Defendants.
Civil Action No. 13-cv-01334-PAB-KLM
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
February 7, 2014
MAGISTRATE JUDGE KRISTEN L. MIX
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Motion to Dismiss Plaintiff‘s Amended Complaint [#14] (the “Motion“).1 Plaintiff filed a Response [#20] on October 2, 2013, in opposition to the Motion, and Defendants filed a Reply [#21] on October 16, 2013. Pursuant to
I. Summary of the Case
In short, Plaintiff challenges Colorado‘s legal limit on marijuana in the bloodstream while driving. See generally Am. Compl. [#8]. Plaintiff alleges that he is a legal, medical, and sacramental cannabis user and runs a church that uses cannabis in its religious practices. Id. ¶¶ 1-2. He sues Defendants State of Colorado and Colorado Attorney General John Suthers in his official and individual capacity (collectively, “Defendants“) regarding the 2013 passage of Colorado House Bill 13-1325 (“HB 1325“). Id. ¶¶ 2, 3, 18. The law, codified at
Plaintiff alleges that the marijuana DUI statute violates the rights guaranteed to him under the First Amendment, Fourth Amendment, Sixth Amendment, and Fourteenth Amendment.2 See generally Am. Compl. [#8]. Specifically, Plaintiff first alleges that under the First Amendment, Colorado‘s five nanogram (“ng“) legal driving limit fails to exempt religious users, which is unconstitutional. Id. ¶ 23. He alleges that because one cannot differentiate between religious, recreational, or medical use of cannabis, Colorado‘s blanket
Second, Plaintiff alleges that under the Fourth Amendment, a warrantless blood test accompanying a DUI investigation is unconstitutional. Id. ¶ 39. He alleges that a DUI investigation does not qualify as an “emergency” that would permit an officer to administer a blood test without obtaining a warrant. Id.
Third, Plaintiff alleges that under the Sixth Amendment, a court‘s admission of a lab report or officer report into evidence without testimony of the lab technician who prepared the report violates the confrontation clause. Id. ¶¶ 29, 30, 32-33, 36. Plaintiff alleges that because the sole purpose of these reports is to analyze whether probable cause exists and submit them as evidence against the defendant, the reports are “testimonial,” triggering his right to confront the witness against him. Id. ¶ 36.
Finally, Plaintiff alleges that under the Fourteenth Amendment, the definitions of “impaired” and “under the influence” in the marijuana DUI statute are unconstitutionally vague with respect to cannabis use.3 Id. ¶ 50. Accordingly, he proposes that the Court
Defendants argue in the Motion to Dismiss [#14] that pursuant to
II. Standard of Review
Because federal courts are courts of limited jurisdiction, the Court must have a basis
A. Fed. R. Civ. P. 12(b)(1)
A motion to dismiss pursuant to
B. Fed. R. Civ. P. 12(b)(6)
A motion to dismiss pursuant to Rule 12(b)(6) tests “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994);
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that defendant has acted unlawfully.” Id. (citation omitted). As the Tenth Circuit has explained, “the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). However, “[t]he court‘s function on a 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff‘s complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant‘s liability, it ‘stops short of the line between possibility and plausibility of
C. Plaintiff‘s Pro Se Status
Plaintiff is appearing pro se. The Court must construe the filings of a pro se litigant liberally. See Haines v. Kerner, 404 U.S. 519, 520-521 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be the pro se litigant‘s advocate, nor should the Court “supply additional factual allegations to round out [the pro se litigant‘s] complaint or construct a legal theory on [his] behalf.” Whitney v. State of New Mexico, 113 F.3d 1170, 1173-1174 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). Additionally, pro se litigants must follow the same procedural rules that govern other litigants. See Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
III. Analysis
A. Standing
Standing is a threshold requirement, and without it, the Court lacks jurisdiction. Summers v. Earth Island Inst., 555 U.S. 488, 492-493 (2009). A person has standing to assert a claim when he alleges that he has experienced a particularized injury that is fairly traceable to defendants and capable of being redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). In other words, Plaintiff must allege that he has suffered an injury in fact, assert a causal connection between the injury in fact and the challenged action, and demonstrate that there is a likelihood that the injury can be redressed by a favorable decision. See Jordan v. Sosa, 654 F.3d 1012, 1019 (10th Cir. 2011). The injury-in-fact requirement means that Plaintiff must allege “an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or
Here, Plaintiff fails to allege an injury in fact for the following reasons. First, Plaintiff alleges that Colorado‘s marijuana DUI statute violates his First Amendment right to free exercise of religion because it infringes on his right to (1) personally use cannabis for medical and sacramental purposes and (2) run a church that uses cannabis in its religious practices. Am. Compl. [#8] ¶¶ 7, 21-27. However, Plaintiff does not allege facts explaining how the marijuana DUI statute infringes on his ability to use cannabis for personal use or during his church‘s religious practices. Further, Plaintiff does not allege facts indicating that his religion specifically necessitates marijuana use resulting in five ngs or more of Delta 9-THC in his bloodstream while driving a car. Therefore, Plaintiff fails to allege facts showing that Colorado‘s marijuana DUI statute has unconstitutionally burdened his religious practices. See Employ‘t Div., Dep‘t of Human Res. v. Smith, 494 U.S. 872, 879 (1990) (holding that Oregon‘s complete ban on peyote was not unconstitutional because “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability.‘“). Accordingly, he fails to allege an injury in fact in connection with his First Amendment claim.
Second, Plaintiff alleges that pursuant to the Fourth Amendment, an involuntary blood test accompanying a DUI investigation is unconstitutional. Am. Compl. [#8] ¶¶ 39-42. He further alleges that under the Sixth Amendment, if a hypothetical lab report of a motorist‘s blood test was admitted in court and the hypothetical lab technician refused to testify, the motorist‘s confrontation clause rights would be violated. Id. ¶¶ 29-38. These allegations are insufficient to create standing. See Baker v. Colorado, No. 11-cv-02578-PAB-KLM, 2012 WL 3744641, at *2 (D. Colo. Apr. 23, 2012) (citing Jordan, 654
Third, Plaintiff alleges that under the Due Process Clause of the Fourteenth Amendment, the definitions of “impaired” and “under the influence” found in the marijuana DUI statute are unconstitutionally vague with respect to cannabis use. However, Plaintiff does not allege facts supporting the conclusion that there is a “credible threat” of his prosecution under the statute. See Cooke v. Hickenlooper, No. 13-cv-01300-MSK-MJW, 2013 WL 6384218, at *4 (D. Colo. Nov. 27, 2013) (holding that the plaintiff lacked standing where he failed to allege a credible threat of prosecution and accompanying statutory guidance letters advised the plaintiff of conduct that was permissible). Because Plaintiff does not allege any facts supporting the conclusion that there is a “real and immediate threat” of his prosecution for driving a car while impaired above the five ng statutory limit, he does not satisfy the injury-in-fact requirement. Id. at *4, 7 (holding that where none of the plaintiffs had alleged that they intended to sell, transfer, or possess gun magazines, they failed to allege sufficient facts to show a credible threat of prosecution for violation of a particular portion of a Colorado statute). Overall, Plaintiff has done no more than imply in a most generalized way that he potentially could be injured by the statutory marijuana driving limit. This is insufficient. See, e.g., Tarrant Reg‘l Water Dist. v. Herrmann, No. CIV-07-0045-HE, 2010 WL 2817220, at *2 (W.D. Okla. July 16, 2010) (stating that “the mere
In his Response to the Motion to Dismiss, Plaintiff restates generalized statistics regarding decreased Colorado automobile accidents and the mild to nonexistent effects of THC on heavy cannabis-using drivers who develop a tolerance to the drug. Response [#20] at 4. Plaintiff argues that “[t]here [are] an infinite amount of scenarios easily concocted showing multiple ways these complained statutes violate on their face as well as applied to the Plaintiff, must we really wait until one surface[s] to ensure and enforce Plaintiff‘s Constitutional rights?” Id. at 5. However, alleging an “infinite amount of scenarios” does not meet the “concrete and particularized” threshold required for Plaintiff to sufficiently allege standing. See Baker, 2012 WL 3744641, at *3 (holding that Plaintiff failed to allege standing where he merely implied that he could be injured by the marijuana laws he challenged).
Plaintiff simply has not provided any specific allegations regarding interference with or hindrance of his religious activities or infliction of a legally-cognizable injury in fact by the marijuana DUI statute. See, e.g., McCormick v. City of Lawrence, Kansas, 253 F. Supp. 2d 1172, 1207-08 (D. Kan. 2003) (stating that the plaintiff had not alleged an injury in fact giving rise to a § 1983 claim where he merely alleged that his access to courts had been “interfered with, hindered and impeded” without providing any particular cases in which he had been unsuccessful or otherwise hindered).
Therefore, because Plaintiff fails to allege “an invasion of a legally protected interest that is (a) concrete and particularized; and (b) actual or imminent” in any of his constitutional claims, the Court finds that he has not met his burden of showing that he has standing to pursue this lawsuit. Accordingly, the court recommends that Plaintiff‘s claims
B. Plaintiff‘s As-Applied Challenge
The Court is aware of the precedent holding that lack of subject matter jurisdiction precludes a court from further considering the merits or substance of a plaintiff‘s claims pursuant to
Defendants move to dismiss Plaintiff‘s “as-applied” constitutional claims pursuant to
C. Plaintiff‘s Facial Challenge
A plaintiff can only succeed on a facial challenge to a statute by “establish [ing] that no set of circumstances exists under which the Act would be valid ..., [meaning] that the law is unconstitutional in all of its applications.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008). When determining whether a law is facially invalid, courts must be careful not to go beyond the statute‘s facial requirements and speculate about “hypothetical” or “imaginary” cases. Id. at 450. Thus, a facial challenge fails where “at least some” constitutional application exists. Id. at 457 (citing Schall v. Martin, 467 U.S. 253, 264 (1984)).
1. First Amendment
Plaintiff alleges that pursuant to the First Amendment, Colorado‘s marijuana DUI statute fails to exempt religious users, which violates the Constitution. Id. ¶ 23 (citing Oregon v. Smith, 494 U.S. 872 (1990)). He alleges that because one cannot differentiate between religious, recreational, and medical use, the broad five ng Delta 9-THC per milliliter limit overinclusively infringes on the First Amendment right of religious cannabis
The Free Exercise Clause of the First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.....”
A state law banning “the performance of (or abstention from)” physical acts only when they are engaged in for religious reasons, or only because of the religious belief that they display, violates the First Amendment. Smith, 494 U.S. at 877. For example, a law banning the casting of “statues that are to be used for worship purposes,” or prohibiting bowing down before a golden calf would be unconstitutional. Id. at 877-878.
However, where a law is not specifically directed at religious practice and is
Furthermore, pursuant to Colorado law, Plaintiff is free to use cannabis during his religious practices. The only inconvenience to Plaintiff is that, while operating a vehicle, he cannot use cannabis to such a degree that it produces five or more ng‘s of Delta 9-THC in his blood. Plaintiff fails to allege that this particular level of cannabis use is an important or necessary aspect of his religious practices. He simply does not address how the marijuana DUI statute burdens him in his Amended Complaint. Accordingly, the Court recommends that Plaintiff‘s First Amendment facial challenge be dismissed with prejudice. Sheldon, 269 F.3d at 1207 n.5.
2. Fourth Amendment
Plaintiff alleges that pursuant to the Fourth Amendment, a warrantless blood test accompanying a DUI investigation is unconstitutional. Am. Compl. [#8] ¶ 39. Specifically, he alleges that a DUI investigation does not qualify as an “emergency” that would permit an officer to conduct a warrantless blood test, and that driving a car does not abolish a
The Fourth Amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”
However, a warrantless search of a person will be deemed constitutionally permissible if it falls within a recognized exception. See, e.g., United States v. Robinson, 414 U.S. 218, 224 (1973) (“It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment.“). One well-recognized exception, and the one at issue in this case, “applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” Kentucky v. King, 131 S. Ct. 1849, 1856 (2011) (internal quotation marks and brackets omitted). A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search, including law enforcement‘s need to provide emergency assistance to an occupant of a home, Michigan v. Fisher, 558 U.S. 45, 47-48 (2009), engage in “hot pursuit” of a fleeing suspect, United States v. Santana, 427 U.S. 38, 42-43 (1976), or enter a burning building
The natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, see Schmerber v. State of California, 86 S. Ct. 1826, 1835-1836 (1966), but whether a warrantless blood test is reasonable must be determined case by case based on the totality of the circumstances. See Missouri v. McNeely, 131 S. Ct. 1552, 1559 (2013). The passage of HB 1325 now allows a blood test result above five ng of THC per millimeter to be used more effectively in court by juries when evaluating evidence to determine whether a defendant was (1) impaired to the “slightest degree,”
Plaintiff‘s assertion that a DUI investigation is not an emergency justifying warrantless blood tests is incorrect. See McNeely, 131 S. Ct. at 1561 (“We do not doubt that some circumstances [during drunk-driving investigations] will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test.“); see, e.g., People v. Shepherd, 906 P.2d 607, 610 (Colo. 1995) (holding that exigent circumstances existed where the suspect was transported to a hospital for medical attention while police officers remained at the scene to investigate the cause of the accident); People v. Schall, 59 P.3d 848, 853 (Colo. 2002) (holding that exigent circumstances existed for investigating officers at the scene to direct a blood draw where the suspect had been airlifted to a hospital
3. Sixth Amendment
Plaintiff alleges that pursuant to the Confrontation Clause of the Sixth Amendment, the admission of a lab report, officer report, or blood drawer‘s report into evidence without the lab technician‘s testimony is unconstitutional. Id. ¶¶ 29, 30, 32-33, 36. Plaintiff alleges that because the purpose of these reports is to analyze whether probable cause exists and for use at trial against the defendant, the reports are “testimonial.” Id. ¶ 36.
The confrontation clause grants the accused “[i]n all criminal prosecutions, ... the right ... to be confronted with the witnesses against him.” Bullcoming v. New Mexico, 131 S. Ct. 2705, 2706 (2011). In Crawford v. Washington, 541 U.S. 36, 59 (2004), the U.S. Supreme Court held that the clause permits admission of “[t]estimonial statements of witnesses absent from trial ... only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Later, in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the Supreme Court declined to create a “forensic evidence” exception to Crawford, holding that a forensic laboratory report, created specifically to serve as evidence in a criminal proceeding, was considered to be “testimonial” for confrontation clause purposes. The Court held that the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the report‘s statements. Id. at 329 (“The Sixth Amendment does not permit the
Here, Plaintiff simply assumes that the government will introduce lab reports without supporting testimony and states the well-established conclusion that such procedures are unconstitutional. However, he fails to allege any facts supporting the conclusion that the government will violate this requirement in future trials. Colorado‘s marijuana DUI statute does not contain a provision that bans a laboratory technician from testifying in court. Accordingly, because Plaintiff fails to allege that the statute would infringe on a defendant‘s right to confront the lab technician, the Court recommends his Sixth Amendment facial challenge be dismissed with prejudice. Sheldon, 269 F.3d at 1207 n.5.
4. Fourteenth Amendment
Plaintiff alleges that pursuant to the Fourteenth Amendment, the definitions of “impaired” and “under the influence” in the marijuana DUI statute are unconstitutionally vague with respect to cannabis use. Id. ¶ 50. Accordingly, he proposes that the Court apply the commonly understood dictionary meanings of those terms. Furthermore, he alleges that Defendants’ argument that these law were enacted on an emergency basis to protect the people of the state is false because hundreds of thousands of medical marijuana patients with Delta 9-THC levels exceeding five ngs have been driving for thirteen years without a DUI occurrence problem. Id. ¶ 54. Plaintiff argues that because he has alleged a reasonable probability of success on the merits of his claim, a preliminary injunction here is warranted. Id. ¶¶ 47-49, 54.
The void-for-vagueness doctrine requires that a statute define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and
First, as stated supra III.A., the Court recommends that Plaintiff‘s constitutional claims be dismissed and therefore, he has not established that he is “likely to succeed on the merits” of his claims. Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008) (“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.“)
Second, Plaintiff claims that the terms “impaired” and “under the influence” are not sufficiently defined in the statute as they relate to cannabis use. However, the marijuana DUI statute defines driving under the influence “as driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.”
Furthermore, Plaintiff fails to allege facts rebutting the Colorado legislature‘s conclusion that most people will be impaired at the five ng per millimeter level. Plaintiff asserts that “[t]here is no advanced threat of harm to the community because although those testing positive for cannabis while driving has [risen] significantly[,] the amount of fatalities and accidents on the road have decreased as Colorado‘s cannabis use grows dramatically.” Response [#20] at 1. Plaintiff additionally alleges that “[t]he number of people killed on Colorado roads in 2009 appears to be at the lowest point in three decades.” Response [#20] at 2.
The statistics cited by Plaintiff are unpersuasive. While a correlation between an increase in cannabis use and a decline in automobile accidents might exist, the relevant inquiry is whether driving under the influence increases one‘s probability of causing an automobile accident. The fact that cannabis use has increased while automobile accidents have decreased does not unequivocally defeat causation. The number of motor vehicle deaths, not only in Colorado, but nationwide, has been declining for the past three
The Colorado legislature, hearing evidence that a person with five ng of Delta 9-THC in his blood was far more likely to cause an automobile crash, determined that at that level, impairment reaches a socially intolerable level.8 Because the five ng statutory limit provides sufficient guidance as to what constitutes driving “under the influence” and fair notice of the prohibited conduct, Plaintiff fails to sufficiently allege that the statute is unconstitutionally vague. See Bushco, 729 F.3d at 1306 (holding statute was not
IV. Conclusion
For the foregoing reasons, the Court respectfully RECOMMENDS that Defendants’ Motion to Dismiss [#14] be GRANTED and that Plaintiff‘s Amended Complaint [#8] be DISMISSED.
It is FURTHER RECOMMENDED that all of Plaintiff‘s claims (First Amendment, Fourth Amendment, Sixth Amendment, and Fourteenth Amendment) be DISMISSED WITHOUT PREJUDICE on the basis of standing pursuant to
It is FURTHER RECOMMENDED that in the event Plaintiff‘s claims are not dismissed pursuant to
IT IS HEREBY ORDERED that pursuant to
Dated: February 7, 2014
BY THE COURT:
Kristen L. Mix
United States Magistrate Judge