Judge sides against tenant on use of marijuana as medicine

June 13, 2006

Gordon Weeks, Anacortes American (WA)

A judge has dismissed an Anacortes man’s $5 million lawsuit against the Anacortes Housing Authority, which charged the agency with violating his family’s civil rights by trying to evict him for keeping two 7-foot snakes and smoking marijuana for medical purposes on the premises. In his decision, U.S. District Judge Robert Lasnik ruled that the rights of Michael Assenberg and his fiance Carla Kearney were not violated when the Anacortes Housing Authority in September 2005 told the couple to vacate their apartment on 22nd Street for violating its policies on pets and the use and possession of a controlled substance.

The AHA is a publicly funded housing authority subsidized by funds from the Department of Housing and Urban Development that provides affordable public housing to low-income people.

In his ruling dismissing the lawsuit, the judge stated that Assenberg’s possession and cultivation of marijuana to treat pain from a 1985 attack violates the federal Controlled Substances Act, and renders the couple ineligible for federally subsidized housing pursuant to their lease, HUD regulations and federal statutes. Assenberg also did not prove the two snakes — a 7-foot gopher snake named Nikki, and a 6-1/2-foot-long redtail boa named Savannah — are “service animals’’ that offer him comfort for severe physical and emotional distress stemming from an assault, the judge ruled.

“In sum, the court finds that AHA did not fail to reasonably accommodate Assenberg’s disabilities. Because Kearney’s claims are derivative of Assenberg’s claims, her claims also fail as a matter of law.’’

The couple now is battling eviction from the three-bedroom apartment through the state Superior Court, and plans to file an appeal to Judge Lasnik’s ruling with the 9th Circuit Court.

“The judge just played puppet to what the FDA (Food and Drug Administration) said,’’ the 46-year-old Assenberg said of the court ruling. He points out that the state allows him to grow and use marijuana for his pain through the Washington State Medical Marijuana Act.
Assenberg said he wanted to present his case to a jury, and never had the opportunity to talk to the judge.

“We followed federal rules and regulations, and the money and time we used to defend our stance could have been put to better use in our community,’’ said Theresa McCallum, the executive director of AHA.

Assenberg’s disabilities stem from an attack in January 1985. While working as a security guard for a mining company in Corona, Calif., an assailant struck Assenberg on the back with a baseball bat. He fell about 15 feet and landed on his back on boulders, breaking nine bones from his neck to his tailbone. In 2005, he moved from Tacoma to Anacortes to live in the AHA apartment with his fiance Kearney, whom he met over the Internet.

In his suit filed in November 2005, Assenberg sought $5 million in damages, court costs and an order stopping AHA from evicting him from the apartment. In its court answer to the complaint, the AHA denied it violated the civil rights of Assenberg and Kearney, and requested an order acknowledging its right to terminate Assenberg as a tenant.

The judge sided with the AHA.
“Assenberg never informed AHA that he trained the snakes or that they had any unique characteristics or abilities to qualify them as service animals. Therefore, Assenberg did not show that the snakes were a necessary accommodation.’’

The judge also ruled that “even after Assenberg refused to provide the requested information or agree to any limits on the snakes, AHA allowed plaintiffs to keep the snakes until it learned that plaintiffs were using and possessing marijuana on the premises. AHA had no duty to accommodate an admitted illegal drug user.’’

Kearney, 41, said her fiance suffers crippling pain, spasms and blackouts when he has no marijuana. Assenberg also takes morphine and Percocet daily to control the pain.

“Our fight is not to legalize the recreational use of marijuana, but to legalize the medical use of marijuana for the patients that need to use it for a medical reason with a doctor’s note,’’ said Kearney. “Our fight is to change federal law so that housing authorities cannot kick people out of the only home they can afford for using their legal use of medicine in the states that have voted it in. Where are the rights of voters? As far as the federal government is concerned, we the people have no rights. Is our country a democracy or a dictatorship?’’

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