# US CA: Ruling Allows Medical Pot Lawsuit to Proceed / A Win for Medical Patients!



## triprey (Sep 15, 2007)

Way to go Judge Roberts!!! Another win for Medical patients!
 
C&P Cannabis Culture Magazine

[SIZE=+2]*US CA: Ruling Allows Medical Pot Lawsuit to  Proceed*[/SIZE] 
by Terry Vau Dell, Staff Writer,  Chico Enterprise-Record, (12 Sep 2007)  _Oroville Mercury-Register California_
A Superior Court judge has  ruled law enforcement response toward medical marijuana co-operatives or  collectives in Butte County is out of step with state law.  

The ruling,  which was hailed by medical pot proponents, permits a civil lawsuit to go  forward brought by a former Oroville man who claims that under threat of arrest  in 2005, he was forced to destroy most of the plants he was growing lawfully as  part of a collective with six other medical marijuana patients.  

In a  strongly worded decision, Judge Barbara Roberts said if it was a qualified  collective, the sheriff's actions were improper and the county's requirement  that all members of such patient co-ops must "actively participate" in the  cultivation process, rather than merely contribute financially, was contrary to  state law and a recent appellate court decision.  

"It appears that,  contrary to the stated policy of the county, the Legislature intended  collectives of medical marijuana would not require physical participation in the  gardening process by all members of the collective, but rather would permit that  some patients would be able to contribute financially, while others performed  the labor and contributed the skills and know-how," Roberts ruled.  

In  attempting to have David Williams' lawsuit thrown out of court, the county's  attorney argued members of medical marijuana co-ops can only assert their right  to grow pot as a defendant in a criminal case.  

While conceding there  was no case law on point on the issue, the judge stated "seriously ill patients  certainly should not be required to risk criminal penalties and the stress and  expense of a criminal trial in order to assert their rights.  

"The civil  court appears to be an equally appropriate forum to address the issues of  patient's rights," Roberts added in her 10-page written ruling, permitting  Williams' lawsuit to go forward.  

Joe Elford, chief counsel for  Americans for Safe Access, the medical marijuana advocacy group that filed the  lawsuit, cheered the pretrial ruling.  

"We're delighted by the decision;  it's a very clear and strong vindication of the rights of medical marijuana  patients to form collectives to cultivate the medicine they need without  harassment by the police," said Elford.  

He said he is uncertain how  far-reaching the local court decision will be, since it takes an appellate court  to establish a legal precedent that would effect other counties.  

"But  not only does it tell the police what a judge in your county feels about the  law, realizing they also could also be subject to civil damages, it could deter  other counties from violating the rights of medical marijuana patients," Elford  asserted.  

Brad Stephens, the county's attorney, said he "respectfully  disagreed" with the judge's decision, calling it a "radical" extension of state  medical marijuana laws.  

Stephens asserts Proposition 215, the 1996  voter initiative that authorized smoking marijuana with a doctor's  recommendation in California, only provided an "affirmative defense" in criminal  court.  It never intended to give them the right to sue in civil court -- a  position with which Elford disagrees.  

Though Stephens disputed many of  the allegations in Williams' suit, by law the judge had to accept them as true,  in deciding whether the civil action was legally sufficient on its face,  Stephens pointed out.  

He specifically denied the contention that Butte  has a policy inconsistent with state medical marijuana laws.  

While the  District Attorney's Office did promulgate a set of written guidelines "to try to  clarify some confusion" over medical marijuana co-ops and at same time try to  weed out commercial growers, it was never an official county policy because it  was never ratified by the Board of Supervisors, argues Stephens.  

He  said he plans to meet with the sheriff and district attorney to discuss the  impact of the local court ruling.  

With the threat of a lawsuit hanging  over them, Stephens expects police now will be less likely to give some members  of purported medical pot co-ops the option of destroying their plants to avoid  arrest, as happened with Williams.  

Williams and his wife were at their  Oroville home Sept.  8, 2005, when Butte County sheriff's deputy Jacob Hancock  ordered them to destroy all but 12 of 41 marijuana plants growing on their  property under threat of arrest, despite the couple's claim they provided  medical documentation showing they were part of a seven-patient collective.   

The suit charges the warrantless search was unlawful and a violation of  Williams' civil rights and "in conflict with the general laws of the state."  

To help clarify questions raised by Proposition 215 about how much  marijuana one could possess, and where to lawfully obtain it, in 2002, the state  Legislature enacted SB420, which among other things, established a per patient  base plant limit and authorized that patients who join collectives for the  purpose of cultivating the herb "shall not be subject to state criminal  sanctions." 

Roberts found the county's argument that patients may assert  their rights to grow medical marijuana cooperatively only as a defense in  criminal court "without merit." 

The local judge conceded state medical  marijuana laws do not specifically authorize a patient to sue in civil court  over the unlawful seizure of their medicine.  

But "if a plaintiff can  show that he has a legal right to possess the marijuana in question, and that  his rights were violated, he may bring his action based on generally applicable  legal principles," the judge ruled in allowing the lawsuit to proceed.   

BACKGROUND: The Butte County District Attorney's Office has set medical  marijuana guidelines that a patient can only have six plants growing.  If a  growing co-op is formed, all members must participate in the cultivation of the  crop, the policy continues.  

THE CASE: On Sept.  8, 2005, an Oroville  medical marijuana grower was told to destroy all but 12 of the 41 plants he was  growing for a seven-member co-op, or face arrest.  A lawsuit against the county  was later filed on his behalf.  

THE LATEST: Last week, a local judge  struck down that part of the district attorney's policy requiring participation  in cultivation.  The judge also rejected the county's argument Proposition 215  only provided defense from criminal prosecution, and didn't authorize civil  action.  The suit was allowed to proceed.  


[SIZE=-1]_MAP posted-by:  Richard Lake_[/SIZE]



*Pubdate:* Wed, 12 Sep 2007
*Source:*  Oroville Mercury-Register (CA)
*Copyright:* 2007 Oroville Mercury  Register
*Contact:* [email protected]
*Website:* http://www.orovillemr.com/
*Details:* http://www.mapinc.org/media/2277
*Author:* Terry Vau  Dell, Staff Writer, Chico Enterprise-Record
*Cited:* Americans for Safe  Access http://www.americansforsafeaccess.org
*Bookmark:* http://www.mapinc.org/topic/Proposition+215
*Bookmark:* http://www.mapinc.org/topic/SB+420
*Bookmark:* http://www.mapinc.org/topic/Americans+for+Safe+Access
*Bookmark:* http://www.mapinc.org/mmj.htm (Marijuana - Medicinal)


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