Every summer for the past few years, the U.S. government has launched a military invasion of Northern California. Residents are no longer surprised to hear low-flying helicopters making slow passes over their homes and yards or to see armed men in camouflage uniforms tramping across their land, looking for marijuana. But they are still angry.
In September a federal judge in California suggested they have good reason to be. In a preliminary ruling, U.S. District Judge Fern Smith refused to dismiss a lawsuit challenging the marijuana-eradication program.
"The allegations are serious and troubling," she wrote. "The complaint, and the other materials before the Court, create a fair inference that many of the alleged acts of wrongdoing occurred as a result of official policies that raise grave constitutional concerns."
The lawsuit, filed by the Drug Policy Foundation on behalf of property owners in Northern California, charges that the overflights and patrols violate the Fourth Amendment's guarantee against unreasonable searches and seizures, the Due Process Clauses of the Fifth and 14th Amendments, and federal statutes that restrict the use of military personnel for law enforcement.
Smith found that the plaintiffs had grounds to sue for each of these violations. This is the first time a court has said that citizens can sue the government for violating the Defense Authorization Act, which strictly limits direct military participation in searches, seizures, arrests, or "other similar activity."
The judge delivered a sharp rebuke to government attorneys, who had argued that the Fourth Amendment does not restrict helicopter overflights. "This is not the law," she wrote. "Sustained, random, low-level helicopter hovering over private homes is repugnant to the Constitution." She also rejected the government's position that military personnel had not violated a plaintiff's Fourth Amendment rights when they stopped and held him at gunpoint on his own property without probable cause.
Other incidents cited by Smith included gratuitous displays of force and warrantless intrusions into the areas immediately surrounding homes. Because the plaintiffs have strong reason to believe that such violations will be repeated, she said, they have standing to sue for an injunction.
After rejecting the government's motion to dismiss, Smith heard oral arguments in the case, Drug Policy Foundation v. Bennett, on October 22. A final decision was expected by the end of the year.