Doctor's suit progresses: Judge decides First Amendment suit in pot sting has merit

September 11, 2007

Ryan Sabalow, Redding Record Searchlight

A federal judge rejected a government move to throw out a First Amendment lawsuit filed by a Redding doctor caught up in a sting against a local medical marijuana dispensary.

A trial date was set for next summer.

Dr. Philip Denney, a vocal medical marijuana advocate who frequently recommends or approves the drug for his patients, sued the U.S. Drug Enforcement Administration and other government agencies for sending informants and undercover agents to his office posing as patients in 2005.

Denney alleges they targeted him because of his stance on the controversial drug, violating his legally protected right to a confidential relationship with his patients and his ability to prescribe a legal drug as he sees fit.

Last month, U.S. District Judge Lawrence K. Karlton denied a request by the DEA and other defendants to throw out the case, saying that Denney's allegations have merit.

"The circumstances at least permit the inference that (Denney) was under investigation for his speech concerning medical marijuana," Karlton wrote.

Speaking from his Redding office on Wednesday, Denney called Karlton's order a "huge victory."

"What made it huge was the judge's opinion," Denney said, referring to the 36-page order filed in California's Eastern District Court in Sacramento. "He basically refuted all of the government's arguments. ... It's pretty clear this is going to a jury."

Among those also named in Denney's suit are the federal Bureau of Alcohol, Tobacco, Firearms and Explosives; Redding Police Department; Shasta County Sheriff's Office; and county District Attorney Jerry Benito.

A DEA spokeswoman in San Francisco declined to comment Tuesday on the ongoing lawsuit.

A trial was set for June 2008, Denney said.

Denney's involvement in the case stems from Dixon Herbs, a Redding dispensary agents busted and shut down in December 2005. The store reopened weeks later and continues doing business at another location in Redding, Denney said.

Denney filed his suit in November 2006. In it, Denney says an informant and an ATF agent visited his office on separate occasions, gave false identification, reported chronic pain and received written recommendations for marijuana.

The agents then went to the Redding herb store and bought medical marijuana, according to court documents.

Police have said Denney was not a target of the probe, and he was not charged with a crime.

But Denney claims he clearly was under investigation. He was under surveillance -- court papers show officers debated wearing a wire before going inside and had discussed going into his clinic armed, he said.

Denney's suit alleges the investigators violated a 2002 decision by the Ninth Circuit Court of Appeals, which ruled that a doctor's discussions with a patient about the pros and cons of medical marijuana are protected under the First Amendment.

California's Compassionate Use Act of 1996 gives seriously ill patients the right to obtain and use marijuana to control pain, nausea and other symptoms.

No such law exists on the federal level.

Reporter Ryan Sabalow can be reached at 225-8344 or at rsabalow@redding.com.

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