Consent Decree
I
INTRODUCTION
This action was brought by 22 named plaintiffs and two organizations on their own behalf and on behalf of all other persons similarly situated, against various federal, state and local officials being sued in their official and in some cases, individual capacities.
Plaintiffs alleged that since 1983, defendants and their agents engaged in a persistent pattern of civil rights violations during the course of the combined federal, state and local California Marijuana Eradication Program, presently known as the Campaign Against Marijuana Planting ("CAMP").
The Second Amended Complaint sought injunctive relief and damages against individuals who allegedly knowingly violated clearly established constitutional and statutory safeguards.
On November 26, 1985, pursuant to Federal Rule of Civil Procedure 23(b)(2), the Court certified a class, for injunctive and declaratory relief purposes only, consisting of "all residents of the state of California who have been, are and will be subjected to the following activities by defendants in connection with the CAMP program: random and general high- altitude surveillance by U-2 airplanes and satellites, random and general low- level surveillance by airplanes and helicopters, dangerous helicopter activities including harassment and detentions, on the ground eradication activities, including warrantless entries and searches of homes and curtilages and warrantless seizures, roadblocks, detentions, interrogations, excessive show of force, and searches by general search warrants. Members of the class include all those who have resided, reside, or will reside in the various counties of California where CAMP has operated, operates, or will operate since 1983.
In deferring plaintiffs' motion that the lawsuit be maintained as a class action for damages purposes, the Court stated:
In the present case, only those defendants who have knowingly violated clearly established Constitutional and statutory rights are individually liable for damages. Thus, each claim by a class member for damages will have to be tried individually. Consequently, notice and the right to opt out, not usually required in a (b)(2) Class Action, should be provided here in order to fully protect the rights of all class members. In addition, the necessity of separate hearings for the purpose of making individual damage determinations for each member of this potentially enormous class, could create manageability problems of some magnitude. The Court, therefore, additionally finds that the damages claims are inappropriate for classwide determination under Rule 23 (b)(2). The Court doubts whether this is the kind of case in which claims for damages are appropriate for class treatment at all.
On September 24, 1986, defendants moved to deny class certification for damages claims. Plaintiffs responded with a statement of non- opposition upon the understanding that all members of the class who wish to assert damages claims against defendants or their agents, arising out of the subject matter of this lawsuit, shall not be precluded from asserting such claims for damages to the extent they are allowed by law in any appropriate forum. On September 14, 1987, the Court granted defendants' motion to deny certification of a damages class.
On October 18, 1984, the Court issued a preliminary injunction in this matter covering various aspects of CAMP ground activities and aerial activities by helicopter. The decision and the injunction, as modified, are reported at 608 F.Supp. 945. On September 27, 1985, the court discharged an Order to show Cause Re Contempt and further modified the preliminary injunction to provide for daily planning of raids, and record keeping regarding deviations from flight plans. On March 6, 1986, the Court appointed a monitor pursuant to Fed.R.Civ.P. 53. The decision is reported at 112 F.R.D. 120.
The parties desire to resolve this litigation by consenting to entry of this Decree. This Decree will resolve this matter without the time and expense of further litigation, including appeal, and it will fully protect the constitutional rights and interests of all members of the plaintiff class and it will enable defendants to continue an effective program of marijuana eradication. |
II
GENERAL PROVISIONS
A. Defendants expressly deny that they or any of their agents have or are engaged in any violation of any provision of the United States Constitution or State of California Constitution, any federal or state law, or federal, state or local regulation or order. Defendants maintain that it has been the policy and will continue to be the policy of defendants to ensure that CAMP operations and activities do not violate the constitutional rights of any citizen or unnecessarily inconvenience or disrupt the public.
B. Plaintiffs and defendants support this Decree as an acceptable resolution of this litigation.
C. This agreement contains the entire agreement among the parties, except for any written and signed agreement regarding attorney fees and cost. No other agreements, statements, or promises made among the parties shall be binding without the express written consent of the parties. Counsel are authorized to sign this agreement on behalf of their respective clients, and by signing, represent that they are authorized to enter into further agreements in connection with and in furtherance of this Decree.
D. Class members shall have the right to seek compliance with the injunctive provisions of this Decree set forth in Part III, infra.
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III
CLASS-WIDE INJUNCTIVE RELIEF
A. Ground Activities
1. CAMP personnel or their agents shall not enter upon private property, other than open fields, unless:
a. They have obtained the consent of the owner or other person in lawful possession of the property;
b. A warrant has issued upon probable cause; or
c. Exigent circumstances exist.
2. When CAMP personnel or their agents are on public land or on private land pursuant to consent or probable cause supported by a warrant or exigent circumstances, they shall not enter adjacent or nearby private property, other than open fields, unless a warrant issues on probable cause, or unless exigent circumstances exist. Mere speculation that a nearby parcel of land may in some way pose a hazard to CAMP personnel or the mere presence of a structure within the line of sight of a marijuana garden does not constitute exigent circumstances justifying entry without a warrant.
B. Helicopter Activities
1. Helicopters conducting surveillance shall comply with the provisions of 14 C.F.R. Sections 91.9, and 91.79(b) and (c), but shall not knowingly fly within 500 feet of any structure, person or vehicle. Helicopters surveying in the vicinity of business or residential structures shall not knowingly fly within the hemisphere extending 500 feet from the outer circumference of the curtilage of any residence.
2. Except over open fields, helicopters shall maintain an altitude of at least 500 feet except when landing on, loading from, unloading to, or departing from an eradication site or landing zone, or when safety otherwise requires. When ferrying personnel, supplies, or cut crops, the helicopters shall take the most direct route available that overflies the fewest possible private residences, unless safety requires otherwise. Where safety or operational feasibility requires deviation from paragraphs 1 and 2 of this section, and/or the pre-planned flight path, the pilot shall file a report documenting the deviation with the team leader and/or lead deputy. When such deviation is known, or can be anticipated prior to the flight, it shall be part of the pre-flight briefing and the pre-flight briefing report.
3. Identifying numbers and marks on helicopters (and fixed-wing aircraft) shall be clearly identifiable and shall not be covered, defaced, or otherwise obscured.
C. Pre-raid Requirements
1. Before each raid begins, CAMP supervisory personnel and the local team leader or lead deputy shall meet and carefully plan the raid in order to minimize the risk of violations, major or minor, of the terms of the Consent Decree and to make certain that the raid conforms with CAMP policy as set forth in Part II(A) of this Consent Decree. Any maps, aerial photos and other relevant data shall be considered at this meeting.
2. Before each raid begins, the team leader or lead deputy shall orally brief each team member about (a) the pertinent terms of Part III of this Consent Decree; (b) the objective of the raid and its permissible scope in light of the terms of Part III of this Consent Decree; (c) the provisions of any applicable search warrant; and (d) the decisions of prior meeting(s) with supervisory personnel or other meeting(s) related to planning of the raid, including but not limited to searches, seizures, and detentions.
3. Before each raid begins, all helicopter pilots involved in that raid shall be orally briefed about (a)
the pertinent provisions of Part III of this Consent Decree; (b) the approved flight plan they must take to best comply with Part III of this Consent Decree; (c) altitudes to be maintained along those flight paths; and (d) the location of all known structures and population centers along the flight paths, using maps and photographs when available. If safety requires last minute changes in the flight path, the pilot shall report any deviations to the team leader or lead deputy, and he must make a prompt written record of that variation.
4. Records for each raid referred to in part III (A), (B), and (C) of this Consent Decree, shall be made on a daily basis and shall be maintained by defendants until January 1 of the second year following the year of that particular raid. Records shall include documentation of the results of each pre-raid briefing, all raid flight plans, any deviation from the raid flight plan, identification of all personnel participating in the raid, raid activity report, and any other similar documents.
D. Dissemination
Defendants have in the past provided wallet-sized cards to CAMP personnel, summarizing the applicable provisions of the preliminary injunction affecting ground and field operations and intend to continue to provide such summary cards. In no event shall mere failure of a CAMP agent to possess this Consent Decree card, constitute a violation of this Decree.
E. Hearing Officer
1. The court shall appoint a Hearing Officer whose powers and duties are set forth below.
a. The Hearing Officer shall (1) upon receipt of declarations or pleadings alleging violations or when otherwise necessary, convene evidentiary hearings concerning any matter relating to compliance with Part III of the Consent Decree; (2) compel the attendance of witnesses; (3) take evidence and rule upon the admissibility of evidence; (4) put witnesses on oath and examine them; (5) and direct the production of books, papers, vouchers, documents and writings under the possession or control of plaintiffs and/or defendants. At such hearings, the Hearing Officer shall give the parties a reasonable opportunity to be heard after reasonable notice and opportunity to prepare. When a party so requests, the Hearing Officer shall make a record of the evidence offered and excluded, in the same manner and subject to the same limitations as provided in the Federal Rules of Evidence for a court sitting without a jury.
b. Before an evidentiary hearing is initiated as provided above, the moving party shall make reasonable attempts to confer with the responding party or parties to determine whether resolution of the claim or dispute may reasonably be accomplished without resort to formal proceedings before the Hearing Officer. Failure to comply in good faith with this provision may be considered by the Court in relation to any request for attorney fees and costs.
c. Except as otherwise stipulated among the parties, within 15 days of the conclusion of any such hearing, the Hearing Officer shall make written findings of fact and conclusions of law for submission to the Court.
d. The Hearing Officer shall retain when necessary, experts, specialists or other persons whose advice or testimony the Hearing Officer deems important to resolve questions concerning compliance with Part III of this Decree. Such persons shall be retained only with consent of the parties or approval of the Court.
e. Communications with counsel:
All written communications between the Hearing Officer and counsel shall be served on designated counsel. The Hearing Officer and counsel shall not engage in ex parte oral communications regarding injunction compliance, except upon good cause and exigency. Prompt report of any ex parte contacts shall be provided to opposing counsel.
f. Reports and findings of the Hearing Officer:
All reports of the Hearing Officer shall contain findings of fact and conclusions of law. A report shall be filed with the clerk of the Court with a transcript of the proceedings and of the evidence and the original exhibits. Before filing any report or findings with the Court, the Hearing Officer shall (1) serve copies of the proposed report or findings upon two designated attorneys for plaintiffs and two designated attorneys for defendants; (2) afford a reasonable time for counsel to submit specific written objections or suggested modifications to the proposed report or finding, or any part thereof, and to submit any requests for hearing; (3) serve copies of any modification of the report or findings on designated counsel; and (4) convene a hearing if requested by a party, unless the Hearing Officer determines that such a hearing would be unnecessary or inappropriate.
g. Burden of Proof: Plaintiffs shall have the burden of proof of establishing a violation by clear and convincing evidence.
h. Effect of findings of Hearing Officer:
(1) Findings of fact by the Hearing Officer shall be conclusive if favorable to the defendants.
(2) If the findings of the Hearing Officer are adverse to any defendant or any agent of any defendant, the defendant or agent shall be entitled to a hearing, de novo, before the Court, and shall retain all rights provided by law.
(3) Either party shall have the right to a ruling, de novo, from the Court, on all conclusions of law.
(4) Any person invoking Paragraphs (2) and (3), above, shall do so within 20 days from service of the Hearing Officer's report.
2. The Hearing Officer shall be compensated at the rate of $100.00 per hour for services performed in accordance with this Decree. This rate has been determined by reference to the rates the Hearing Officer would reasonably charge for comparable services performed for private clients and is subject to change by further order of the Court.
a. All reasonable costs and expense incurred by the Hearing Officer in carrying out his duties under this order shall be reimbursed as costs. Expenditures of more than $300.00 for a single item must be pre- approved by the Court.
b. All of the Hearing Officer's fees, costs and expenses shall be borne by the defendants.
3. Appointment of Hearing Officer:
The parties stipulate to the appointment of the Honorable Thomas P. Kongsgaard, Jr. as the Hearing Officer under this Decree. Judge Kongsgaard shall serve in this capacity until further order of this Court.
4. Appointment of future Hearing Officer:
In the event that a new Hearing Officer is to be appointed, the following procedures shall be used to recommend a successor: within 30 days after notice from the Court of its intent to appoint a new Hearing Officer, each side shall submit the names of four potential nominees to the other side. Within 15 days from receipt of the names of potential nominees, each side may strike up to three names. Within ten days thereafter, each side shall submit the names of any nominees not struck to the Court. The parties recognize that the Court retains full discretion to select a new Hearing Officer regardless of the recommendations of the parties. Where both parties agree upon a replacement, the Court shall not reject said nominee absent good cause.
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IV
EXPIRATION OF CONSENT DECREE
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This Consent Decree shall expire, and all injunctive relief provisions of this lawsuit shall be dismissed, on December 31, 1990, unless plaintiffs establish by clear and convincing evidence that CAMP personnel, or any of them, have knowingly violated this Consent Decree during the calendar years 1989 or 1990. In the event that a violation is so established, this Consent Decree shall expire and the injunctive provisions of this lawsuit shall be dismissed on December 31 of the second consecutive year in which no violation has been established.
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V
ATTORNEYS FEES AND COSTS
Pursuant to the provisions of 42 U.S.C. Section 1988, plaintiffs' counsel shall be entitled to payment of reasonable attorneys' fees and reasonable and necessary costs. In determining reasonable attorneys' fees, the following provisions shall apply:
A. The award of attorney fees and costs by the Court shall cover all work expended by plaintiffs' counsel and all costs advanced by plaintiffs' counsel of any kind or nature through August 1, 1987, and all additional work by plaintiffs' counsel and costs expended by plaintiffs' counsel in connection with obtaining final approval of the Consent Decree.
B. The decision of the Honorable Robert P. Aguilar, subject to minimum and maximum attorney fee limits, shall be binding upon the parties and non- appealable by either party.
C. The parties agree not to disclose the minimum and maximum attorney fee limits to any individual or the Court unless requested by a party to whom plaintiffs' counsel owe a duty in this lawsuit, or ordered by the Court.
D. Pending this Court's final decision on attorney fees and subject to further order of this Court, any matters which may require consideration and disclosure of the dollar limits of the attorney fee agreement and the costs agreed on, shall be referred to another judge of the Court for consideration of fairness in relation to the proposed Consent Decree. Nothing herein shall be construed to waive the right of any party to have the issue of appropriate attorney fees determined by the Honorable Robert P. Aguilar.
E. Class counsel shall retain all rights under law to apply for reasonable attorneys' fees for attorney, paralegal and law clerk work, and costs for all time reasonably incurred in administering, monitoring, enforcing, modifying and defending this Consent Decree, unless otherwise specifically agreed to herein. Defendants retain all rights to dispute and oppose all claims. |
VI
ORDER
Proof having been provided to the Court that adequate notice has been given to the class and the court having determined that this Decree is fair and reasonable, and no objection having been filed or presented to the Court,
IT IS HEREBY ORDERED that this Consent decree is approved.
Dated December 18,1987
Robert P. Aguilar
UNITED STATES DISTRICT JUDGE
Consent to the entry of the foregoing Decree is hereby granted.
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RONALD M. SINOWAY
MELVIN B. PEARLSTON
R. ELAINE LEITNER
MARSHALL KRAUSE
ARTHUR M. SOHCOT
GORDON S. BROWNELL
RICHARD J. MOLLER
KEVIN ZEESE
Ronald M. Sinoway....by
RONALD M. SINOWAY
Attorneys for Plaintiffs
JOHN K. VANdeKAMP
Attorney General of California
STEVE WHITE
Chief Assistant Attorney General
JOHN H. SUGIYAMA
Assistant Attorney General
MORRIS BEATUS
Deputy Attorney General
Morris Beatus....by
MORRIS BEATUS
Attorneys for State Defendants
JOSEPH P. RUSSONIELLO
United States Attorney
JOHN F. PENROSE
Assistant U.S. Attorney
John F. Penrose....by
JOHN F. PENROSE
Attorneys for Federal Defendants
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