Pubdate: Thu, 02 Jul 2009
Source: San Francisco Chronicle (CA)
Page: B3
Copyright: 2009 Hearst Communications Inc.
Contact:  http://www.sfgate.com/chronicle/
Details: http://www.mapinc.org/media/388
Author: Bob Egelko, Chronicle Staff Writer
Bookmark: http://www.mapinc.org/find?115 (Cannabis - California)
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

MEDICAL POT USERS, GROWERS CAN SUE OVER RAIDS

Medical marijuana patients and growers can sue police for illegally 
raiding their property and destroying their plants, a state appeals 
court ruled Wednesday.

The 2-1 decision by the Third District Court of Appeal in Sacramento 
was the first in the state to allow a patient or grower to sue 
claiming that their rights to cultivate and use medical marijuana 
have been violated. Those rights are protected by state law but 
banned by federal law.

Officials in Butte County, where the case arose, argued that patients 
and suppliers can invoke the medical marijuana law only as a defense 
to criminal charges, not to sue for damages. The court's dissenting 
justice said no one is entitled to compensation for the destruction 
of a drug banned under federal law.

But the court's majority said a marijuana patient or member of a 
collective has the same right as anyone else to sue officers who 
violate the constitutional ban on illegal searches and seizures.

The plaintiff, David Williams, is relying on "the same constitutional 
guarantee of due process available to all individuals," Justice Vance 
Raye said. He said Williams is not required to go through "the 
expense and stress of criminal proceedings" to assert his rights.

Williams belonged to a seven-member collective near the town of 
Paradise. When a sheriff's deputy came to his door without a warrant 
in September 2005, Williams showed doctors' recommendations for all 
seven patients that allowed them to grow and use marijuana, he said.

He said the officer had questioned the legality of the collective and 
ordered him to destroy 29 of the 41 plants on his property or face 
arrest. He complied, then sued the officer and the county for 
damages. Wednesday's ruling upheld a Superior Court judge's refusal 
to dismiss the suit.

In a dissenting opinion, Justice Fred Morrison said Congress should 
ease the federal ban on marijuana to accommodate California and 12 
other states that allow medical use. But as long as the ban exists, 
he said, no one has the right to use the drug, and police are 
entitled to confiscate it.

Brad Stephens, a deputy county counsel, said the county would 
probably appeal to the state Supreme Court.
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