Ruling allows medical pot lawsuit to proceed

September 11, 2007

Terry Vau Dell, Chico Enterprise-Record

A Superior Court judge has ruled law enforcement response toward medical marijuana co-operatives or collectives in Butte County is out of step with state law.

The ruling, which was hailed by medical pot proponents, permits a civil lawsuit to go forward brought by a former Oroville man who claims that under threat of arrest in 2005, he was forced to destroy most of the plants he was growing lawfully as part of a collective with six other medical marijuana patients.

In a strongly worded decision, Judge Barbara Roberts said if it was a qualified collective, the sheriff's actions were improper and the county's requirement that all members of such patient co-ops must "actively participate" in the cultivation process, rather than merely contribute financially, was contrary to state law and a recent appellate court decision.

"It appears that, contrary to the stated policy of the county, the Legislature intended collectives of medical marijuana would not require physical participation in the gardening process by all members of the collective, but rather would permit that some patients would be able to contribute financially, while others performed the labor and contributed the skills and know-how," Roberts ruled.

In attempting to have David Williams' lawsuit thrown out of court, the county's attorney argued members of medical marijuana co-ops can only assert their right to grow pot as a defendant in a criminal case.

While conceding there was no case law on point on the issue, the judge stated "seriously ill patients certainly should not be required to risk criminal penalties and the stress and expense of a criminal trial in order to assert their rights.

"The civil court appears to be an equally appropriate forum to address the issues of patient's rights," Roberts added in her 10-page written ruling, permitting Williams' lawsuit to go forward.

Joe Elford, chief counsel for Americans for Safe Access, the medical marijuana advocacy group that filed the lawsuit, cheered the pretrial ruling.

"We're delighted by the decision; it's a very clear and strong vindication of the rights of medical marijuana patients to form collectives to cultivate the medicine they need without harassment by the police," said Elford.

He said he is uncertain how far-reaching the local court decision will be, since it takes an appellate court to establish a legal precedent that would effect other counties.

"But not only does it tell the police what a judge in your county feels about the law, realizing they also could also be subject to civil damages, it could deter other counties from violating the rights of medical marijuana patients," Elford asserted.

Brad Stephens, the county's attorney, said he "respectfully disagreed" with the judge's decision, calling it a "radical" extension of state medical marijuana laws.

Stephens asserts Proposition 215, the 1996 voter initiative that authorized smoking marijuana with a doctor's recommendation in California, only provided an "affirmative defense" in criminal court. It never intended to give them the right to sue in civil court — a position with which Elford disagrees.

Though Stephens disputed many of the allegations in Williams' suit, by law the judge had to accept them as true, in deciding whether the civil action was legally sufficient on its face, Stephens pointed out.

He specifically denied the contention that Butte has a policy inconsistent with state medical marijuana laws.

While the District Attorney's Office did promulgate a set of written guidelines "to try to clarify some confusion" over medical marijuana co-ops and at same time try to weed out commercial growers, it was never an official county policy because it was never ratified by the Board of Supervisors, argues Stephens.

He said he plans to meet with the sheriff and district attorney to discuss the impact of the local court ruling.

With the threat of a lawsuit hanging over them, Stephens expects police now will be less likely to give some members of purported medical pot co-ops the option of destroying their plants to avoid arrest, as happened with Williams.

Williams and his wife were at their Oroville home Sept. 8, 2005, when Butte County sheriff's deputy Jacob Hancock ordered them to destroy all but 12 of 41 marijuana plants growing on their property under threat of arrest, despite the couple's claim they provided medical documentation showing they were part of a seven-patient collective.

The suit charges the warrantless search was unlawful and a violation of Williams' civil rights and "in conflict with the general laws of the state."

To help clarify questions raised by Proposition 215 about how much marijuana one could possess, and where to lawfully obtain it, in 2002, the state Legislature enacted SB420, which among other things, established a per patient base plant limit and authorized that patients who join collectives for the purpose of cultivating the herb "shall not be subject to state criminal sanctions."

Roberts found the county's argument that patients may assert their rights to grow medical marijuana cooperatively only as a defense in criminal court "without merit."

The local judge conceded state medical marijuana laws do not specifically authorize a patient to sue in civil court over the unlawful seizure of their medicine.

But "if a plaintiff can show that he has a legal right to possess the marijuana in question, and that his rights were violated, he may bring his action based on generally applicable legal principles," the judge ruled in allowing the lawsuit to proceed.

 

BACKGROUND: The Butte County District Attorney's Office has set medical marijuana guidelines that a patient can only have six plants growing. If a growing co-op is formed, all members must participate in the cultivation of the crop, the policy continues.

THE CASE: On Sept. 8, 2005, an Oroville medical marijuana grower was told to destroy all but 12 of the 41 plants he was growing for a seven-member co-op, or face arrest. A lawsuit against the county was later filed on his behalf.

THE LATEST: Last week, a local judge struck down that part of the district attorney's policy requiring participation in cultivation. The judge also rejected the county's argument Proposition 215 only provided defense from criminal prosecution, and didn't authorize civil action. The suit was allowed to proceed.



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