Ridge medical pot grower's right to sue Sheriff's Office upheld

July 02, 2009

Terry Vau Dell, Enterprise-Record

In a landmark decision, an appeals court has upheld the right of a member of a Paradise medical marijuana collective to sue the county over an order by a sheriff's deputy to uproot most of his plants.

American's For Safe Access, the organization which brought the lawsuit on behalf of David Williams, 56, contends it is the first time a California court in a published opinion has authorized a medical marijuana patient to seek money damages to protect his civil rights.

Williams sued the Butte County Sheriff's Office after one of its deputies, Jacob Hancock, during a warrant-less search of Williams' property in September 2005, reportedly ordered him to tear down all but 12 of the 41 marijuana plants the ridge man claimed he was growing as part of a seven-patient collective, or face prosecution or arrest.

In a 2-1 ruling Wednesday, allowing William's lawsuit to go forward, the 3rd District Court of Appeal in Sacramento affirmed a prior decision by Butte County Superior Court Judge Barbara Roberts, refusing to toss out the civil case.

Roberts rejected the county's arguments that state medical marijuana laws only provided a limited defense to criminal charges, not an immunity against arrest or prosecution, and that Williams had lacked legal standing to sue the Sheriff's Office.

In her September 2007 ruling, Roberts held that seriously ill people "should not be required to risk criminal penalties and the stress and expense of a criminal trial in order to assert their rights."

Roberts also found a county policy requiring members of a medical marijuana collective to take part in the actual cultivation process rather than contribute financially, was inconsistent with state law.

In their 15-page written ruling Wednesday Appellate Court Justices Arthur G. Scotland and Vance W. Raye agreed with Roberts that the plaintiff was not seeking immunity from an arrest, but rather challenging whether a sheriff's deputy, acting without a warrant had "probable cause" to order him to tear down his plants "under pain of arrest."

The justices rejected the suggestion allowing Williams' civil case to proceed to trial would lead to "disorder, opening floodgates" of lawsuits by other medical marijuana patients.

"Instead we see an opportunity for an individual to request the same constitutional guarantee of due process available to all individuals ... The fact that this case involves medical marijuana and a qualified medical marijuana patient does not change these fundamental constitutional rights or an individual 's right to assert them," the court held.

In a dissenting opinion, Justice James C. Morrison Jr. agreed in part with the county's attorneys that because marijuana is still illegal under a federal law, Williams lacked the legal right to sue.

"Allowing this suit to go forward exceeds the scope of (Proposition 215) frustrates federal law, requires California courts to validate illegal conduct and needlessly complicates the work of law enforcement," Morrison stated in his equally lengthy dissenting opinion.

Finding such a view would surely "shock the sensibilities" of the voters who passed Proposition 215, the court majority noted that in ordering Williams to uproot the bulk of his plants, the Butte County sheriff's deputy had been "acting under color of California law, not federal law ... accordingly, the propriety of his conduct is measured by California law."

Deputy Butte County Counsel Brad Stephens stated in an e-mail Wednesday that the county will ask the state Supreme Court to review the appellate court decision.

Williams' lawyer, Joe Elford, lead counsel for Americans for Safe Access, a pro medical marijuana organization based in San Francisco, heralded Wednesday's ruling.

"In addition to protecting patient's right to collectively cultivate, the court has reaffirmed that medical marijuana patients enjoy the same constitutional rights as everyone else, including the ability to file civil rights actions when those rights are violated," said Elford.




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