BEH Speaks on Marijuana at OCCMA

David and Chad were invited to speak at the summer 2015 OCCMA conference in Bend on issues related to the local regulation of marijuana use and sales in Oregon. Their presentation focused on topics of interest to cities and counties including the ability of local governments to ban marijuana facilities, marijuana taxation and reasonable time place and manner restrictions on marijuana facilities.

SB 254

By David Doughman

“A reminder to public agencies in Oregon: SB 254 became effective on July 1, 2014.  The Oregon Legislature passed this bill in 2013.  It significantly changes the process by which public agencies may utilize the construction manager/general contractor (aka “CM/GC” or “GC/CM”) delivery method.  It is codified at ORS 279C.337 and a link to that chapter is provided here.

And by “significantly changes,” we mean it makes it significantly more difficult to utilize the CM/GC process to build public improvements.  While the delivery method is meant for complex projects, and while there likely have been instances when its use was not justified for a given project,  SB 254 adds so many proverbial hoops to jump through that most agencies will likely avoid using it even when it makes sense to do so.

Exemptions sought before July 1 were not subject to SB 254.  It is not clear from the bill exactly what steps an agency would need to take in order to vest under the existing process.  To be safe, we recommend an agency have an exemption approved prior to July 1 if it is interested in using CM/GC for a coming project.”

Ninth Circuit Rejects Qualified Immunity Request In Use of Taser Case

The United States Court of Appeals for the Ninth Circuit, the Circuit to which Oregon belongs, rejected a request for qualified immunity by a police officer who used a taser to subdue a passive bystander.  In Gravelet-Blondin v. Shelton, the plaintiff was tased and arrested after he allegedly failed to comply immediately with an officer order to move away from the scene where his neighbor was being arrested.  The Ninth Circuit explained that it was “beyond debate” that using non-trivial force in response to passive bystander behavior was unconstitutionally excessive.  The Court further explained that it was well known as of 2008 that a taser in dart mode constitutes more than trivial force.  Because Gravelet-Blondin did not impose an immediate threat of death or serious injury to himself or others, his actions were those of a passive bystander, and the officer in question should have known that the use of the taser to subdue his passive resistance was unconstitutionally excessive.  Accordingly, the Court rejected the officer’s request for qualified immunity.  In addition, because the City’s policies related to the use of tasers did not clearly prohibit the use of tasers in this situation, the Court held the City was also potentially liable.  

The use of tasers continues to be a source of litigation against local governments and their employees, and local governments need to make sure to have proper policies in place and provide adequate training to their employees to avoid this type of litigation.  Please do not hesitate to contact the lawyers at BEH if we can provide you with any assistance in reviewing your jurisdiction’s taser policies or assist with providing training to your employees.