July 31, 2008
Kylie Mendonca, New Times SLOElaine McKellips vomits three to four times every day. When she sits, her legs knock together uncontrollably at the knees, a condition she apologizes for offhandedly. McKellips suffers from several chronic, debilitating maladies ranging from gastroparesis, which severely impedes digestion of even the most benign liquids, to restless leg syndrome. Nausea keeps her at home most of the time and when she does move it’s in labored, deliberate steps with the aid of a cane. She employs a caretaker. Despite it all, she said life is better than before she started smoking prescription marijuana.
“I was throwing up between 12 and 15 times a day,” McKellips said. “I could wake up from a nap and it would just hit me, throwing up bile. Nothing has to be in my stomach. And so I was confined to my bed, and I had a bucket near my bed, and what kind of a life is that? So my caregiver read in the paper about the dispensary opening, and about medical marijuana, and said maybe I should try it. It worked immediately.”
Her frame may be petite and frail but McKellips is capable, and matter-of-fact about her circumstances. She is sick and, in accordance with California law, wants her medicine. She also wants her medical records returned with an apology from Sheriff Patrick Hedges, who solicited federal Drug Enforcement Administration agents to raid the home of Charles Lynch and his Morro Bay business Central Coast Compassionate Caregivers, in March last year.
To lawmakers who backed Proposition 215, and Assembly Bill 420—the so-called medical marijuana laws—McKellips is a model candidate for “alternative” pain relief; she can’t digest the pill Marinol, a synthesized version of tetrahydrocannabinol (THC), the active compound in marijuana.
To federal prosecutors trying to convict Charles Lynch on five charges of distributing, cultivating, and trafficking in marijuana from the Morro Bay dispensary, McKellips is a liability.
Prosecutors actually made a formal motion to keep “sick looking” people off the stand. It didn’t work. McKellips will likely testify in Lynch’s defense, but she has her own legal battle to wage. On June 20, she filed a lawsuit against the County of San Luis Obispo, the San Luis Obispo Sheriff’s Department, and Sheriff Hedges himself, seeking unlimited damages for his role in busting the dispensary.
The origins of safe access
“I filed the lawsuit to ensure that other patients in San Luis Obispo County have the same rights as patients in other counties,” McKellips said.
Although it was a federal agency, the DEA, that raided the dispensary, she can’t seek redress in federal courts. She claims she was denied medicine; but what California recognizes as legitimate medicine, the federal government considers nothing more than a fix of a dangerous, illegal controlled substance. So McKellips’s suit is with the state courts against a local agency over an allegedly illegal search and seizure of medical records that was never warranted by the state.
She claims invasion of privacy and HIPAA (Health Insurance Portability and Accountability Act) violations. HIPAA is a federal patient privacy law. She also alleges violations of due process and alleges the raids violated equal protection statutes, arguing that the sheriff selectively enforced the law by choosing to ignore Proposition 215. McKellips is seeking compensation for the alleged privacy violations, as well as the time she spent without medical marijuana. She is also calling on the county to investigate whether the sheriff improperly used public funds for the investigation or the raid.
Since Proposition 215 was passed in 1996, (followed by Assembly Bill 420, which was designed to fill in legal gaps left by 215) 11 states have legalized the use of marijuana for certain medical relief. But federally, marijuana remains a prohibited Schedule 1 drug. That classification doesn’t recognize any medical benefits of the plant, and puts it in the same category as heroin.
Between 2005 and 2007, there were about 60 DEA raids in California and about as many convictions in federal courts. Although most prosecuted dispensary owners forgo jury trials and take pleas, the raids, the investigations, and the court time cost tax payers dearly. Americans for Safe Access, a medical marijuana advocacy group, estimates that between 2005 and 2007 the DEA spent more than $10 million on dispensary raids in California alone. That doesn’t take into account the cost of investigations leading up to the busts.
Prosecuting these cases federally is like shooting fish in a bucket. There are receipts, client lists, and tax documents that show how much marijuana was sold, and to whom. And unlike most drug busts, the contraband is clearly labeled, packaged, and conveniently stored in one not-so-secret location. In federal court, Lynch’s status as a provider of medicine can not be considered. His patient lists and transaction receipts will be viewed as a roster of illicit drug users and records of deals.
It’s a states’ rights issue that has taken center stage with several bills in Congress aimed at clearly defining the jurisdictions of state and federal law enforcement. They would bar the DEA from raiding state-sanctioned dispensaries, or prevent local agencies from participating in such DEA raids. So far Congress has passed none, but San Francisco and other cities have resolved that cops must adhere to state law. However, DEA raids on legalized medical marijuana dispensaries are increasing.
On April 29, Chairman of the House Judiciary Committee John Conyers sent a public letter to acting DEA Administrator Michele Leonhart criticizing a perceived increase in the agency’s “paramilitary-style enforcement raids.” Conyers openly questioned the DEA’s use of resources for raids on people and their caregivers who are conducting themselves legally under California law.
With the lawsuit, McKellips claims that Hedges, as a locally elected law-enforcement agent, should never have been involved in enforcing the federal law in contradiction of state law. Furthermore, because he never secured a state warrant, he should never have been given access to evidence, which includes patients’ names, addresses, and phone numbers, and perhaps other personal medical information.
In short, Hedges had access to a Rolodex of marijuana users in the county, and that prospect has many patients worried that he won’t respect their rights under Proposition 215. Earlier this year, Hedges refused to return a patient’s illegally confiscated marijuana until faced with a court order. That patient was Craig Steffens, a retired aircraft mechanic and veteran, who is known locally for his advocacy of medical marijuana and hemp. Sheriff’s spokesman Rob Bryn said Hedges previously was concerned that releasing the marijuana could violate federal law and had been waiting to see if the California Supreme Court would take up an appeal of a related case. It didn’t.
McKellips is angry that her privacy has already been violated, but worries more that it will continue to be violated.
“I’m asking for punitive damages,” McKellips said, “because I feel like they have those records, and they’re just investigating everybody, when they don’t really have a right to. They raided Charles Lynch, not me. Why are my records in the hands of the sheriff?”
McKellips is not the only one who’s worried. Steffens, who was a member and grower for Compassionate Caregivers, said it’s not a question of if or when Hedges will use personal information to go after patients. Steffens believes he already has.
“He already used his power to investigate the dispensary without any probable cause,” Steffens said. “He started investigating as soon as they opened in Atascadero. I believe he has an agenda, he is doing everything he can to go after patients, and people who provide care for patients.”
Steffens expects to join McKellips’s lawsuit.
The year of the stakeout
Elaine McKellip’s medical records were seized more than a year ago, as part of the federal raid on the local marijuana dispensary, Compassionate Caregivers. She is suing local Sheriff, Patrick Hedges, to get them back, and for invasion of privacy.
For local enforcement agencies to be involved in a raid or an investigation is not unheard of, according to Americans for Safe Access spokesman Kris Hermes. But several factors make the raid of Compassionate Caregivers egregious, in his eyes.
For example, Hermes said, federal law enforcement agencies have been called to participate in raids when local officials have not sanctioned dispensaries. That was the case in Kern County, where several dispensaries were investigated and raided with the help of local officials. Compassionate Caregivers, however, was welcomed to Morro Bay. Mayor Janice Peters was at the ribbon-cutting ceremony, and Lynch was a member of the Morro Bay Chamber of Commerce. Besides, Morro Bay has a police department, and they were strictly instructed to enforce state law, Peters said in an interview.
Hedges also conducted a yearlong investigation before the feds were ever called. During that time he spent thousands of dollars on marijuana and prescriptions alone and, according to the investigation report that the DEA compiled to obtain a warrant, officers from the sheriff’s department went to Los Angeles County twice, running surveillance while their informants got prescriptions from a seemingly questionable source. This “doctor,” who is also being charged with Lynch, allegedly smoked pot with informants at these appointments.
During the year Compassionate Caregivers was open, there was never a time when McKellips visited that she didn’t see a surveillance truck, but she never felt threatened, because she believed she was operating within the law.
“It was so obvious,” McKellips said, “the undercover police that were surveying it. I knew what car they had. I knew where they parked. I saw them watch me, I saw them making notes, so the minute I went in, the first time I went, I knew I was being watched, but that’s different than them having my medical records.”
The investigation report indicates that they were present almost daily, taking down license plate numbers, and taking note of what went in and what came out. The cost of the year-long investigation is unknown, but Hedges was apparently unable to produce probable cause to justify a state search warrant and therefore turned to the DEA. To date, one Compassionate Caregivers’ employee, Abram Baxter, was arrested on suspicion of selling marijuana to undercover officers outside the dispensary. Even that case was unusual. Baxter plead guilty and was ready to move on with his life, only to find that his file was confused with that of another man, whose last name was also Baxter. Abram is still waiting to be retried and sentenced all over again.
To date, there have been no charges whatsoever at the local level against either Lynch or the dispensary.
Had neighbors complained, Hermes said, that could have led to an investigation by a local agency, but they would probably call the Morro Bay police, not the sheriff. Mayor Peters said that she personally met with every business owner in the immediate vicinity of the dispensary and gave them her card, with an invitation to call her if they had any problems. No one called, she said.
March 29, 2007: The raid
On March 29, 2007 Sheriffs’ officials, with the DEA, raided Central Coat Compassionate Caregivers at 780 Monterey St. in Morro Bay. TV news crews milled around outside the building for hours, with the dense Morro Bay fog surrounding them, just waiting to get a shot of the confiscated goods. Then-spokesman Brian Hascall, of the Sheriff’s Department, gingerly flittered between news crews, defending the sheriff’s role within the Morro Bay city limits by noting that, before the dispensary began business bayside, it operated briefly in Atascadero. That city was less than hospitable and Lynch moved the business after about a month, but the sheriff had already started an investigation. Hascall explained at that time that the relocation made Compassionate Caregivers a county issue.
Hours after the news crews arrived, the spoils of the raid were finally hauled out in shopping bags and plastic boxes, labeled with marijuana names such as “Diesel” and stacked on the sidewalk for a photo-op. The raiders also loaded seized computers, credit card processing machines, telephones, answering machines, prescriptions, and stacks of paper. Local deputies, many of them members of the county’s elite Narcotics Task Force, were present in numbers equal to or greater than those of federal agents. Baxter was arrested that day, and though Hascall would not then release any details of the investigation, citing the sealed federal warrant, everything would become crystal clear, he said, when the indictments were announced.
During the discovery phase of Lynch’s case, the details of the investigation did indeed come to light.
For example, when Lynch’s home was raided the same day, Lynch was naked and held at gunpoint while the DEA searched the home for weapons. According to the affidavit—a sworn statement that leads to a warrant—federal agents take into account certain behaviors of dispensary owners, such as a tendency to keep cash on hand and whether they have armed guards at the dispensary (Lynch did not keep an armed guard). About $30,000 was found at Lynch’s home, which was seized with the rest of his assets. Otherwise, the affidavit cites information that is more appropriate for the fall of a major drug cartel: “Drug dealers commonly have in their possession … firearms, including handguns, pistols, revolvers, rifles, shotguns …” Lynch had none. He had several guitars, and a piano, on which “Chopsticks” was played by one of the agents, according to Lynch’s sworn statement.
McKellips’s case is based on details from the discovery phase of Lynch’s case. Until discovery, the extent of Hedges’ investigation was unknown. And, according to McKellips’s suit, Hedges not only went over the heads of the Morro Bay Police Department, but circumvented the district attorney and all other county officials in seeking help from the DEA. The result, according to the suit, was a quid pro quo arrangement in which Hedges received access to seized information in exchange for inviting the feds.
According to court documents, Hedges took possession of evidence, including medical records, in early April, less than two weeks after it was seized. It’s unknown how long the sheriff actually had possession of sensitive documents.
Bryn said that he could not speak to any case details, because he and several other deputies from the Sheriff’s Department have been subpoenaed to testify in Lynch’s case. But he said, wherever the records were being stored previously doesn’t matter, because they’re all in Los Angeles now, ready as evidence for the trial.
After the raid
It was unclear immediately after the raid weather the dispensary would re-open. May patients held their breath, some sought marijuana from less wholesome sources. McKellips waited, and her nausea returned with punishing ferocity. She said she was bedridden, throwing up 12 or more times a day, but she was afraid of buying marijuana illegally. McKellips gets her medicine from the Santa Barbara dispensary now, which is more than an hour away and more expensive than was Compassionate Caregivers, she noted.
Before the raid, McKellips said that she knew Lynch on a purely professional level, and she never imagined the acquaintance would become any more than that. Lynch is facing prison time. He’s confined to his home; his assets, including money, cars, and his house, have been all been seized. And McKellips worries about him: “After the raid I got to know him a little bit personally, enough to talk on the phone; right now I try to call him at least once a week to make sure that he’s hanging in there.”
Two of the federal charges Lynch is facing are related to selling marijuana to minors younger than 21 years old. One such minor was a 17-year-old amputee with bone cancer, whose parents were buying the prescription for him.
Regarding patients’ fears of prosecution that may stem from seized confidential records, the American College of Physicians (ACP) is unequivocal, “ACP strongly urges protection from criminal or civil penalties for patients who use medical marijuana as permitted under state laws.” The ACP is composed of 126,000 members, including internists, medical students, residents, and fellows.