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Federal judge tosses ex-Green Beret's lawsuit against Fountain over pot raid

February 15, 2018 Updated: February 15, 2018 at 10:42 pm
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Eli Olivas' attempt to sue Fountain police over a July 2016 marijuana raid has been quashed. He had a license to grow 99 plants and had something like 15. Olivas is a former Green Beret who uses marijuana to treat his PTSD. Wednesday, August 23, 2017. (Photo by Jerilee Bennett, The Gazette)

A former Army Green Beret's attempt to sue Fountain police over a July 2016 marijuana raid has been quashed.

A federal judge in Denver this month dismissed a civil rights lawsuit filed by Eli Olivas citing "failure to state a claim," a procedural snag meaning that Olivas' complaint failed to identify lawful grounds for action.

Such rulings mean that even if all allegations are true, there is no basis for relief. In this case, Olivas' suit failed to overcome legal protections for police officers who act in good faith, even if they were mistaken at the time.

Olivas, who served for several years in a Fort Carson-based Army Special Forces unit, filed suit against police and the city of Fountain last summer, claiming they violated protections against unlawful search and seizure when SWAT officers with a flash-bang grenade raided his house and a backyard greenhouse. The police failed to confirm that he was registered grower licensed to grow up to 99 plants, his suit said.

In a previous interview, he complained that his girlfriend was handcuffed despite a shoulder injury and led into the street wearing only a nightshirt.

He said police pointed their weapons at him, aggravating his post-traumatic stress disorder.

Olivas wasn't charged and police ended up taking clippings from his 18 marijuana plants rather than seizing them.

However, a signed search warrant provided legal cover for the officers, U.S. District Magistrate Judge Michael E. Hegarty concluded in dismissing the lawsuit.

"How do you establish an unlawful search and seizure when there's a warrant?" asked Colorado Springs attorney Ed Farry, who wasn't involved in the case.

The legal clash became a local example of obstacles faced by veterans who turn to marijuana for treatment. Some are discouraged from using the drug out of fears their veterans' benefits could be disrupted, advocates say.

Others have expressed concern about law enforcement action given the drug's murky legal status: Although marijuana is legal to possess and grow in Colorado, it remains illegal under federal law.

It's unclear whether Olivas' complaints of harsh tactics translated into any changes in how Fountain police handle marijuana enforcement.

John Trylch, a spokesman for the city of Fountain, declined to comment, and Fountain police Sgt. Scott Gilbertsen did not respond to an email. Olivas' attorney, Terrence A. Johnson of Woodland Park, did not return multiple phone messages.

The judge's dismissal likely marks the final word on Olivas' complaint.

"If the lawyering was competent, and if it raised all the issues that could be raised, presented all the facts that could be presented, and it still got thrown out, I suspect the claim is deceased," said Colorado Springs attorney Phil Dubois, who wasn't involved.

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