Courts

DC Judge Rules That Guy Can't Smoke Weed In His Own House Because His Neighbor's Property Rights Outweigh Him Being Sick

Nate Dogg wouldn't be happy to hear about this.

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marijuana gavelThere are three telltale signs that you’ve officially become a curmudgeon. You’re still holding onto that grudge from the time your neighbor didn’t shovel your driveway last year, you find Halloween to be a general annoyance, and people whose personality revolves around smoking weed become kind of insufferable. Alright, I admit that one may just be a sign of maturity, but you’re a special kind of petty if you’re willing to take someone to court for blazing up in the house next to you. From Law.com:

A judge for the Superior Court of the District of Columbia held that a duplex resident must stop smoking or burning marijuana “in any form that emits an odor” earlier this month after a neighbor claimed exposure to it impacted her health.

Following a nonjury trial at the beginning of the year, Associate Judge Ebony M. Scott permanently barred Thomas Cackett from smoking in or within 25 feet of his home despite holding a medical marijuana license. The court found that while D.C. law permits a small amount of marijuana consumption with or without a prescription, Cackett’s enjoyment of cannabis does not supersede his neighbor’s use and enjoyment of her own property.

In November 2020, Josefa Ippolito-Shepherd filed a lawsuit seeking $500,000 in damages for negligence, nuisance and trespass with claims that the marijuana smoke damaged her property and that she has had adverse health episodes, such as respiratory issues, headaches and nausea when Cackett smokes marijuana.

First things first, the obligatory recognition that this ruling is the hardest advertisement for weed quality that Cackett’s plug will likely ever get. You know how rare it is for a drug to be relatively legal and still have the state stop you from consuming it in your own home? One thing comes to mind: Everclear 190.

With that out of the way, I assume that a judge would treat nuisance claims over marijuana (where it is legal to smoke) the same way that they would treat nuisance claims over a tenant smoking cigarettes. It isn’t unheard of for tenants to be banned from smoking cigarettes within 25 feet of their homes in at least one context — back in 2016, the Department of Housing and Urban Development (HUD) made a rule that requires state and local public housing agencies to do just that. That rule doesn’t apply here as both of the litigants live in private residences, but I still wonder if a judge would have issued the same rule if Cackett’s neighbor complained this hard about tobacco smoke.

In the end, I don’t get the rationale for siding with Ippolito-Shepherd. I know she claimed that she got health consequences because of Cackett’s smoking, but she wasn’t able to prove any of that in court. Cackett definitely has a medical marijuana license — why not side with the guy who can prove that his use is medicinal? And even if the judge was sensitive to Ippolito-Shepherd’s right to enjoy her property, doesn’t being able to administer medicine in one’s own home deserve the same protection? DC winters can be rough — the judge is effectively requiring him to go outside in the cold if he wants relief. Why not require a filtering system as a preemptive measure before encroaching on Cackett’s enjoyment of his property?

This is one of those outcomes that a nice pre-roll could help with. Unfortunately, Cackett might have to settle for some edibles.

Judge: DC Resident Barred From Smoking Marijuana In, Outside Duplex Due To Neighbor’s Loss Of The ‘Use And Enjoyment’ Of Her Property [Law.com]

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Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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