Will Snoops Get Stopped?

September 07, 2007

Fred Gardner , CounterPunch

U.S. District Judge Lawrence K. Karlton has denied the Drug Enforcement Administration's motion to dismiss a civil suit brought by Philip A. Denney, MD. The case will be tried in June 2008 in Sacramento. Denney is seeking to enjoin government agents from infiltrating a medical practice under false pretenses.


In the Fall of 2005, as part of an investigation run by the DEA, an agent from the Alcohol, Tobacco and Firearms Bureau named Steven Decker and an informant controlled by the Redding Police Department visited Denney's Redding office feigning ailments and seeking approval to medicate with marijuana. The visits to Denney were described in great detail in two "Investigative Narratives" provided to Denney by a concerned citizen. Their sole motive, the DEA contends, was to gain admittance to Dixon Herbs, a nearby dispensary that was under investigation.

Whether or not he was the focus of the investigation, Denney contends, the agents' visits inhibited his ability to discuss marijuana use with patients. The First Amendment right of doctors to do so freely was upheld in a case called Conant v. Walter by two federal judges and ultimately by the 9th Circuit Court of Appeal. Denney's suit charges that the DEA violated the Conant injunction.

Denney and attorney Zenia Gilg now get to depose participants and review relevant documents. They must show that the investigators visiting his office were motivated by "retaliatory animus."

The facts of the case are set forth in a 36-page order that Karlton issued Aug. 14. Here are excerpts:

"Plaintiff Philip Denney is a physician who has been licensed to practice medicine in the state of California since 1977. Since graduating from medical school at the University of Southern California, he has practiced Family, Emergency, and Occupational Medicine. He has never been disciplined by the state medical board, nor has he had his hospital privileges revoked, suspended, or restricted ...

"Dr. Denney is an outspoken proponent of medical marijuana. He has been qualified to testify as an expert witness regarding the use of cannabis in at least 17 counties ... has testified before the California Medical Board regarding medicinal cannabis, and is a founding member of the Society of Cannabis Clinicians."

Karlton recounts that Dixon Herbs had twice turned away undercover operatives who lacked doctors' recommendations. On September 21, 2005 a "Confidential Source" (CS) was sent to Denney's office.

"The receptionist asked for his/her medical records, which the CS reported were unavailable because he/she had recently moved from Mississippi and that the records had been destroyed in Hurricane Katrina. The receptionist went out of the office and, it is claimed, looked at the CS's vehicle to confirm that it had Mississippi license plates, which it did.

"Thereafter, Dr. Denney examined the CS, whose chief complaint was a pinched sciatic nerve that caused chronic pain. Dr. Denney asked if he/she attempted other mainstream prescription medications, and was told that he/she did, but that these medications caused stomach problems. Plaintiff then indicated that the CS was a candidate for the medical use of marijuana and explained that it was to be used only as recommended, not as a recreational drug. He then gave the CS a written recommendation.

"While the CS was inside, an investigator surveilled the office from the street. Although fitting the CS with a covert transmitter or monitoring device had apparently been considered, the investigators decided against it because the transaction was to take place within a doctor's office. Before the CS entered the office, the investigators checked him for contraband and money and established a prearranged meeting point where they were to meet after he left plaintiff's office ...

"On November 9, 2005, defendants DEA Agent Dennis Hale, ATF Agent Steven Decker, and Redding Police Officers Tracy Miller and Eric Wallace conducted a briefing regarding the procurement of a medical marijuana recommendation from plaintiff. Agent Decker was chosen to procure the marijuana recommendation and use it at Dixon Herbs because he was the only conveniently available agent with an appropriate undercover identity. The investigators then approached plaintiff's office and surveilled it while Agent Decker was inside.

"Using a false driver's license, Agent Decker told plaintiff's receptionist that his name was Steven Hoffmaster. When asked for prior medical records, he stated that he had been to a hospital in Santa Clara but could not recall which one. The receptionist called several hospitals in Santa Clara but found no record of a Steven Hoffmaster. Agent Decker was told that the examination could proceed while the receptionist tried to locate his prior medical records.

"During the examination, Agent Decker told Dr. Denney that he had been in a motorcycle accident, which caused him to have daily pain in his neck. Agent Decker then showed plaintiff a scar on his neck, the product of the alleged motorcycle accident. After the examination, Dr. Denney provided a written recommendation to Agent Decker approving the use of medical marijuana ....

"The crux of plaintiff's First Amendment claim is that defendants engaged in an investigation of his medical practice as an act of retaliation for his speech concerning medical marijuana. In Conant, the Ninth Circuit upheld a permanent injunction enjoining the government from revoking a physician's license to prescribe controlled substances based solely on the physician's professional recommendation of the use of medical marijuana, and, as particularly relevant here, from conducting an investigation of a physician based on the same impermissible source of sound medical information.

"Conant further rejected the government's argument that the injunction against investigations of physicians would hamper law enforcement efforts. 'Because a doctor's recommendation does not itself constitute illegal conduct, the portion of the injunction barring investigations solely on that basis does not interfere with the federal government's ability to enforce its laws.' Furthermore, the Conant injunction does not bar investigations where the government has a good faith belief that it has substantial evidence of criminal conduct.

"Although Conant arose against the backdrop of a federal policy of revoking the drug prescription licenses of doctors who recommend marijuana, its holding, contrary to the federal defendants' portrayal, is not limited to license revocation. Rather, the district court also forbade any investigation of a doctor solely on the basis that he or she recommended medical marijuana. In other words, an investigation motivated by disagreement with the doctor's speech, even if not directly connected to the ultimate objective of license revocation, is nevertheless barred by the Conant injunction."

What Denney Needs to Prove

Denney must overcome three hurdles, according to Karlton:

"In order to prove a retaliatory claim, plaintiff must demonstrate that (1) defendants possessed an impermissible motive to interfere with this First Amendment rights, (2) that defendants' conduct would chill a physician of ordinary firmness from future first Amendment activities, and (3) that the defendants would not have engaged in the conduct in question but for the retaliatory motive ..."

The second hurdle is very low. Doctors tend to be conservative and a physician of ordinary firmness (no sexist remarks, please) would not do anything s/he thinks might displease the DEA.

The other two hurdles seem not only high but unfair from the victim's perspective. What's motive got to do with it? If a hit man shoots the wrong person by mistake, what does it matter to the victim that he wasn't the intended target? The DEA asserted in its motion to dismiss and will argue at trial that the surreptitious visits to Dr. Denney were incidental to the investigation of Dixon Herbs and that no animus motivated them. But to Denney, the realization that he'd been misled by government agents was extremely upsetting regardless of the agents' motives. After learning of the visits, his complaint states, he became more suspicious of his patients and less open in discussing marijuana use with them.

Certainly in lying to Denney in order to get a desired diagnosis the agents showed disrespect for him personally and as a doctor. That disrespect, Denney argues, showed retaliatory animus and disregard for his rights under the First Amendment. And what if he and his staff had not demonstrated good practice standards? What if Amanda not asked for the (fake) patients' records and tried diligently to obtain them? What if she had accepted the agent's cover story with a wink and a nod instead of confirming the out-of-state plates? What if a flyer advertising Dixon Herbs had been observed in Denney's waiting room? What if Dr. Denney had told the agents who were pretending to be in pain, "There's a dispensary in town called Dixon Herbs" and provided the address? Wouldn't the investigation then have included his practice? The DEA claims they weren't investigating when in fact their snoops didn't observe anything incriminating.

Denney and Gilg will seek to show that "retaliatory animus" has driven DEA policy towards medical marijuana ever since the passage of Prop 215 in November, 1996. (The following month DEA Administrator Thomas Constantine met with California officials to plan opposition to its implementation.) Perhaps they can call a mathematician to explain that Denney's medical practice and the Dixon Herbs dispensary are, from the DEA's perspective, in the same set -businesses that facilitate access to marijuana for medical use. The DEA has a retaliatory animus towards the whole set, as proven by policy statements defining marijuana as a dangerous drug with no medical use whatsoever.

Karlton's order continues:

"Defendants maintain that the purpose of the undercover visits was not to investigate plaintiff, but merely to obtain written marijuana recommendations so that they could buy marijuana at Dixon Herbs and make a criminal case against Ron Dixon. As support, they note that a Redding Police Department CI who had previously attempted to enter Dixon Herbs without a recommendation was barred from doing so. Furthermore, the DEA CS only went to plaintiff's office after being first turned away from Dixon Herbs and then referred to plaintiff's office.

"In response, plaintiff argues that the visits to his office bore all the traditional hallmarks of an investigation. For example, plaintiff notes that when the CI was in the medical office, an agent was outside conducting surveillance. Furthermore, although a covert transmitter and monitoring device was not used, it was at least considered. Additionally, the CI was searched before and after the office visit, the police report described the incident as a 'controlled buy of a marijuana prescription,' and recorded funds were used.

"While there may have been other reasons for the defendants' meticulous care in procuring a marijuana recommendation from plaintiff and preserving an ostensible chain of custody, there is at least a genuine dispute that defendants were investigating plaintiff. This is true in spite of the declaration of Dennis Hale, the federal case agent, which states that there has been no investigation of plaintiff. The intent to inhibit speech, like the existence of a conspiracy, can be demonstrated here through direct or circumstantial evidence, and here, the circumstance at least permit the inference that plaintiff was under investigation for his speech concerning medical marijuana ...

"This remains a factual dispute even if, as the federal defendants argue, they had not heard of Dr. Denney until a man at Dixon Herbs referred the CS to plaintiff's office. Although under such circumstances it appears fairly clear that Dr. Denney was not the target of the investigation when it began, this does not foreclose the possibility that the investigation expanded to include him once the CS was referred by Dixon Herbs to plaintiff's office. What matters for purposes of making out a First Amendment violation is that the officials possessed a retaliatory animus at the time the CS and undercover agent visited plaintiff's office ...

"Plaintiff has identified the specific defendants allegedly involved, the nature and time of the alleged investigative activities (sending a CS on Sept. 21, 2005 and an undercover agent on Nov. 9, 2005) and the manner in which plaintiff was affected. This is a sufficient factual allegation from which a fact-finder could infer the existence of a conspiracy.

"Second, defendants argue that plaintiff has not proven that a physician of ordinary firmness would be deterred from speaking about medical marijuana in light of two undercover visits. Defendants assert that 'the physician has nothing to fear so long as the physician is... not running a script mill but engaging in the practice of medicine.'

"This turns the holding of Conant on its head. Defendants' argument, if carried to its logical conclusion, would mean that the injunction in Conant was unnecessary. Because a physician's recommendation of medical marijuana to a patient is not illegal, they should also have nothing to fear from an investigation. The problem, however, is that a physician of ordinary firmness who was only engaging in lawful speech concerning medical marijuana could, in fact, be chilled by a federal investigation. As Judge Kozinski noted in his concurrence in Conant, 'Physicians are particularly easily deterred by the threat of governmental investigation and/or sanction from engaging in conduct that is entirely lawful and medically appropriate,' in part because an investigation may harm a physician's reputation. Here, the question of whether or not a physician of ordinary firmness would be chilled by two undercover visits is, at the least, an issue on which reasonable minds could disagree.

"Third, defendants argue that the element of causation is lacking. Plaintiff must plead and prove that the challenged investigative activities would not have been undertaken but for the defendants' retaliatory animus... Defendants maintain that they would have sent the undercover visitors to plaintiff's office even without the alleged retaliatory motive... Defendants argue that there is no chain of causation to connect the alleged unconstitutional motive with the undercover visits.

"Plaintiff responds that there were other methods of investigation available that would not have abridged plaintiff's First Amendment rights. For example, plaintiff maintains that defendants could have forged a medical marijuana recommendation, just as law enforcement creates false identity documents for undercover agents. Alternately, plaintiff suggests that law enforcement could have openly enlisted plaintiff's assistance without fraud or deception."

Karlton questioned the efficacy of these options. A forged recommendation, he noted, "could be exposed by a confirmation phone call to Dr. Denney's office," And asking for Denney's help "might have compromised the secrecy of the investigation." Still, Karlton went on, Denney has a right to "develop an evidentiary basis to support his claim." In other words, he has a right to depose the agents and read their files relevant to their visiting his office.

In order to get an injunction preventing the government from sending undercover agents into his practice in the future, "plaintiff must prove (1) injury in fact, (2) causation, and (3) redressability."

Denney alleges that the undercover visit harmed him in two ways, Karlton wrote:

"Made him fearful of discussing the medical benefits of marijuana with his patients [and] made him suspicious of his patients, some of whom he has turned away for fear that they were using false identification provided by law enforcement. Defendants respond that whereas criminal prosecution can threaten liberty, mere investigations cannot. Furthermore, defendants argue that suspicion and anxiety do not constitute cognizable injury ... The court disagrees. If harm to a doctor's ability to 'speak frankly and openly to patients,' was not a cognizable injury, the Conant injunction would never have issued in the first instance."

As for causation,

"Dr. Denney's suspicions were roused only upon the defendants' undercover visits and his discovery of the same. These visits were the but-for cause of his self-censorship, and an injunction would clearly restore Dr. Denney's confidence in his relationships with his patients."

"Defendants argue that emotional distress caused by an investigation is not irreparable harm ... but the harms of an investigation were sufficiently irreparable to justify the injunction upheld in Conant. Damages would be an inadequate remedy because they could not reassure Dr. Denney that similar investigative tactics will not be used in the future."

Dr. Denney says that's fine with him. His goals are political, not financial. He's seeking to defend the Bill of Rights.

Fred Gardner edits O'Shaughnessy's, the journal of cannabis in clinical practice. He can be reached at fred@plebesite.com



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