mikez

Newsbrief: Federal Civil Rights Lawsuit Filed In California "Hippie Profiling" Case
Drug War Chronicle Newsletter | 4/16/04


A year ago this week, DRCNet reported that the California Court of Appeal had overturned the "hippy profiling" marijuana convictions of Jason Fishbain and Chris White (LINK).

The dreadlocked pair had been convicted after being pulled over on US Highway 101 in Northern California by a California Highway Patrol (CHP) officer notorious as an anti-drug zealot because their vehicle bore no front license plate -- registered in Arizona, it did not need one -- and because an air freshener was hanging from the rearview mirror.

The officer then claimed he smelled burned marijuana and searched the vehicle over the protests of its occupants, finding five pounds of marijuana that Fishbain and White maintained was for medical use.

Now one of the men accosted by Officer Doug Mertz has filed a federal lawsuit naming Mertz, as well as the CHP officials and staffers responsible for hiring and training officers, as defendants. Jeffrey Fishbain, who is also the Americans for Safe Access coordinator in his north Humboldt County area, filed the lawsuit March 16. He seeks unspecified damages.

Fishbain suffered through years of legal travails, spending almost $125,000 according to an account posted on his web site (LINK).

As the lawsuit puts it, he "suffered personal injuries, emotional distress, humiliation, embarrassment, damage to reputation, loss of earning capacity and the incurring of attorney fees to defend himself from the false charges."

The reason he suffered such indignities, the lawsuit alleges, is that Mertz and unnamed CHP staffers "acted in their individual capacities and with malice, oppression and in conscious disregard for (Fishbain's) health, safety and legal rights." The lawsuit points to Mertz's lack of probable cause in detaining Fishbain and charges that CHP higher-ups hired Mertz and others involved in the case "without adequate training or qualifications and, after their hire, inadequately trained and supervised them in the exercise of their authority... including stopping, detaining, searching, seizing and arresting citizens without probable cause."

Mertz is well-known among Humboldt County defense attorneys as an officer who never saw an air freshener that didn't seem like probable cause for a search.

CHP should have reined him in, the suit says. CHP staffers "were aware of prior instances of Mertz (and other officers and officials) violating the Fourth and Fourteenth Amendment rights of citizens, but took no steps to prevent the occurrence and/or reoccurrence of such incidents," the lawsuit alleges.

Fishbain's attorney, Richard Massa, told the McKinleyville Press Fishbain he had been drained by the years of legal hassles. "The legal fees alone are substantial, because my client had to deal with a couple of trials and an appeal," Massa said.

But while Fishbain is the plaintiff in this case, Massa added, a victory for Fishbain would be a victory for the Constitution. "The Civil Rights Act is one of the most important laws in the United States," Massa said. "And it's the only law in which an individual can actually enforce their Constitutional rights.

There is no way to vindicate their civil rights other than through a civil rights case. Mr. Fishbain is simply taking the only alternative he has to gain compensation for the wrong that was done to him."

And Californians with dreadlocks or air fresheners should thank him.

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"I have sworn upon the altar of God, eternal hostility against every form of tyranny over the mind of man." --Thomas Jefferson.

Suetaz

In the first paragraph it says Jason Fishbain and in the 4th paragraph it says Jeffrey Fishbain. Is this a typo, or did a relative file the suit?

Another rogue cop giving other cops a bad name. I doubt Mertz cares about the damage he has done and I hope they win this lawsuit to at least teach other cops that they can't tread on anyone's constitutional rights.

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SmokyThePenguin

Another dumbass smoking pot while driving giving stoners a bad name. **** him.

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Bellatrix

Um...Smoky, there's nothing in the article to indicate that anyone in the car was high. The cop didn't have probable cause to search the vehicle. His "claim" that he "smelled burning marijuana" is a bold faced lie. He just wanted an excuse to search the car. This was a VERY clear example of an overzealous cop, badly trained, self-imprtant, inebriated by his own power and allowed to run rampant over the people he's supposed to be working to protect.

As well he should. Doug Mertz deserves to lose his job for this kind of behaviour, but he's only a symptom of a larger problem. Officers like Mertz, who manfacture probable cause and harass otherwise peaceful people, actually make money for cash-strapped law enforcement agencies by superficially padding arrest numbers. Thus they can ask the state and federal governments for more money at the end of the fiscal year, using these numbers to "prove" that they need more cash flow to fight the "war" on druuuuuugs. That's why nobody "reigned" this cop in. It was this kind of twisted system that contributed to the Tulia debacle.

There is absolutely no excuse for this kind of abuse. Are they so desperate to hire cops that this qulaifies as acceptable behaviour? How often does this happen, but we just don't hearabout it? END THE DRUG WAR NOW.

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Niteshift

The cop didn't have probable cause to search the vehicle. His "claim" that he "smelled burning marijuana" is a bold faced lie.

Is that a FACT or just an OPINION? It looks like you are stating it as FACT. Were you there? Do you have secret information that nobody else has seen?

As for the rest of that response......... It's not worth the effort to address.




(I see you can't resist dragging Tulia out yet again. It's starting to look like that's the only example you can use.)

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Bellatrix

Ummm...Niteshift, did you read this? The cop could NOT have smelled "burned marijuana" because there WASN'T any. Yes, there was a stash was in the trunk, but it wasn't "burned." The cop didn't see anything incriminating before he searched the trunk, like ashes or roaches in the front seat, so it's pretty obvious he's lying.

And if I may borrow a line of yours - "As for the rest of that response......... It's not worth the effort to address."

prop215

I am glad to see that there was some chat on this topic I know the defendents in this case and am very farmiliar with the entire history of the court case, I would be more than happyu to answer any questions you have to clear up any issues as to the money and quanity of marijuana it was maintained through their attorneys that it was medical cannabis for one of the passangers mother who died during the first trial of the pair
STOPHIPPIEPROFILING.org

END THE DRUG WAR

Plainsman1963

Medical Pot Activist Drops Lawsuit Against Traffic Cop
After a Successful Appeal of His Marijuana Conviction, Jason Fishbain Ends ‘Hippie Profiling’ Suit
09-26-05 | JasonFishbain.Tripod.Com | Daniel Mintz

The medical marijuana advocate who set case law on probable cause in traffic stop searches by successfully appealing his marijuana conviction has nevertheless dropped his lawsuit against the Southern Humboldt officer who busted him.

Jason Fishbain, a local representative of the Americans for Safe Access group, said he is dropping his lawsuit against California Highway Patrol (CHP) Officer Douglas Mertz, who is stationed in Redway. Fishbain was arrested on marijuana charges in 1999 after Mertz pulled his car over on Highway 101 near Myers Flat and searched it — but an appeals court ruled that the officer’s search was illegal because he had no reason to carry it out.

Mertz had been well-known to local defense attorneys for pulling people over due to the presence of objects — an air freshener, in Fishbain’s case — hanging from rearview mirrors. Fishbain’s car didn’t have a front license plate, either, and Mertz pulled him over and a search of the car’s trunk uncovered more than five pounds of marijuana.

Fishbain said he was transporting the cannabis for patient use in the Bay Area, but the D.A.’s Office, then led by Terry Farmer, filed a criminal case — and refiled it twice, once after a dismissal and a second time after a jury failed to reach a verdict. Convinced he wouldn’t get fair treatment locally, Fishbain pleaded guilty but later appealed his case based on the circumstances of the search.

And the appellate judges agreed that the evidence Mertz uncovered was the result of an illegal stop. The appeal ruling deemed the air freshener as an unreasonable trigger for police attention, and only rear license plates are required in Arizona, where Fishbain’s car was registered.

The case against him was ordered dismissed, but a friend who had been traveling with him had spent two-and-a-half years in Pelican Bay prison on charges stemming from the illegal stop and search.

Fishbain then filed a lawsuit against Mertz and any other CHP officers who knew of Mertz’s traffic-stop habits or failed to train him properly. But Fishbain said the appeal defined Mertz’s actions as illegal and set a precedent — and his attorney advised him that the follow-up suit would probably fail because the officer would have learned of his errors only after the appeal determination.

But if similar stops and searches are carried out now, police will be vulnerable to legal action. And the CHP has done something Fishbain was seeking through his lawsuit — the police agency has changed its policy on medical marijuana. Previously, all marijuana had been seized and arrests made, regardless of medical use. An Americans for Safe Access (ASA) lawsuit, however, led to an attorney general’s opinion that pressured the CHP to honor the legality of medical marijuana in California.

“The change in policy was something I was satisfied with,” said Fishbain. He also explained that after consulting several attorneys, including one with ASA, he realized his civil lawsuit against Mertz probably wouldn’t succeed.

Fishbain is nevertheless pleased with recent legal developments regarding medicinal cannabis, both locally and statewide. A Supreme Court ruling last spring reiterated the authority of the feds to bust patients and medical growers, but Fishbain said the decision hasn’t upended their legal status in California as some feared.

“I think we’ve come to a point — regardless of what the Supreme Court said — where things are in relatively good shape for the average patient in this county and in the state,” he said. Local and state authorities are taking medical marijuana more seriously, Fishbain added, even though the feds can trump them and make arrests if they wish.

But unless large numbers of plants are involved, federal intervention is unlikely and would probably depend on local police referrals. The next step in marijuana liberation is changing things on a federal level, Fishbain said. “The federal issue needs to be resolved but it never will be until marijuana is rescheduled as a drug with medical benefits,” he continued.

How likely is that? “Things seem to be swinging in our favor,” Fishbain replied. “Polls show that people are generally in support of using marijuana medicinally, and about half say it’s a benign substance and should be legal — there may come a point where politicians will have to address that.”

The CHP’s media office did not return a message by press time.

Migz420

nice follow-up 2 years later!

I used to get pulled over all the time in highschool and taken out of my car and told to sit in a snowbank while officers searched my ride. I was charged with possesion of marijuana and paraphernalia, for an empty dugout. Twice I was told I was pulled over for "faulty warning lights/headlights" when there was nothing wrong with either. Once I was pulled over because I "looked suspiscious" driving after midnight, searched. My charges were dropped with a plea bargain deal but still....it seems like a case of "hippy profiling" to me!

At least the guy got the policy changed in cali. Good fight mister Fishbain....

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