Patients sue for return of seized pot

August 17, 2004

Laura Counts, Oakland Tribune

OAKLAND -- More than three dozen medical cannabis patients from 36 California counties filed simultaneous lawsuits Tuesday demanding the return of about $1 million worth of marijuana seized by law enforcement officers the past few years.

In all those cases, the plaintiffs proved they were medical marijuana patients and were never charged with possessing the drug, or they had charges against them dropped, according to the Berkeley nonprofit that organized the lawsuits. But they never got their pot back, and they want it now, or at least its cash value.

'There are (38) filing today, but this is just the beginning,' said Steph Sherer, executive director of Americans for Safe Access, which coordinated the cases. 'When we look at implementation of Proposition 215, it's surprising to see such a culture of resistance among law enforcement.' 

Just three of the 38 plaintiffs filed their cases in Alameda County. Another lives in San Leandro but filed in Contra Costa County, where he was arrested. Two of the cases involve the Oakland Police Department, and the third involves San Leandro police.

The Alameda County plaintiffs are seeking relatively tiny amounts of the drug. One Oakland man is seeking the return of 2 grams -- enough for a few joints -- and a Berkeley man is seeking 5 grams seized by Oakland police.

The San Leandro plaintiff claims police took 21/2 pounds of his medicine in October 2002.

Alameda County District Attorney's Office representatives said they had not received the cases yet and could not comment.

Chris Hermes, legal coordinator for Americans for Safe Access, said the group had received so many complaints from patients who lost their marijuana in busts that it decided to do a study. It logged calls for three months and received more than 100 complaints. It culled those down to the 38 who met the criteria to sue.

The group argued such cases are an unnecessary expense for a state in which voters approved the Proposition 215 'compassionate access law' in 1996.

'We used estimates to determine what it costs to arrest someone and prosecute them and determined that law enforcement is spending $4 million a year,' Hermes said in a conference call. 'The return of the property in these cases has accumulated to almost $1 million.'

The lawsuits were filed as criminal rather than civil cases because they involve an encounter with law enforcement, said William Dolphin of Safe Access.

The penal code allows those whose property was seized unlawfully to retrieve it through a judge's order, or to receive compensation if it has been lost or destroyed.

The cases must be filed individually in the counties where the seizures occurred and cannot be bundled together. Patients have filed such lawsuits individually in the past, Dolphin said.

Hermes said seizure of cannabis from patients is not 'an isolated thing' but happens in 'almost every law enforcement encounter.'

Safe Access has put together a model policy for law enforcement to follow in medical marijuana cases. Some already have such policies.

Lt. Rick Hart of the Oakland Police Department said he is crafting a written policy for the return of medical cannabis, but the department already allows it.

'If the case is dropped, they can come down and talk to the vice officer who handled it,' he said.

'If they are entitled to it, they can get it back. If it's a large amount, the crime lab has taken a sample and destroyed the rest, so we are working on a policy for them. But small amounts shouldn't be a problem.'

Even medical marijuana activists praised the Oakland Police Department for its policies. Angel McClary Raich, who won a federal court victory allowing her to possess and use marijuana as her medicine, said she recently helped a patient get a quarter-pound of pot back.

'I've worked with them very closely,' she said. 'The moment they find out it's medical, they'll take photos or videos or clippings from the plants. If a patient has a card they'll call to verify it or call the doctor. It's not perfect, but overall they've attempted to do a really good job.'

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