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April 28,
2003
CounterPunch
News Exclusive
Fighting Back in Santa Cruz:
Medical
Marijuana Patients Sue The Feds
By ANN HARRISON
California medical marijuana patients blocked
a country road in Santa Cruz county last September, trapping
DEA agents who had just chainsawed 167 marijuana plants grown
by the Wo/Men's Alliance for Medical Marijuana (WAMM). Agents
driving U-Hauls stuffed with the patients' seized medical cannabis,
were forced to negotiate the release of WAMM founders Valerie
and Michael Corral from custody in exchange for their own safe
passage.
These same patients, together with their
city and county officials, are now suing the federal government,
and the individual DEA agents, to prevent such raids from taking
place again. On April 23, the City and County of Santa Cruz became
the first public entity to file a lawsuit against federal drug
warriors. Plaintiffs charge that the government is violating
the right of medical marijuana patients to make decisions about
their pain relief -- and ultimately the final moments of their
lives.
"The heart of the matter is the
fundamental constitutional right of every citizen to control
the circumstances of his or her own death,'' said plaintiff's
attorney Gerald Uelmen. ``That right is so fundamental that the
federal government cannot interfere with that right unless they
show a compelling interest, and that is the challenge that we
are posing to federal authorities in this case.''
WAMM provides medical cannabis under
California's Compassionate Use Act (Prop. 215) which the federal
government refuses to recognize. Its members have worked openly
with the community and local law enforcement for ten years. But
unlike other medical marijuana dispensaries, WAMM also serves
as a hospice for its patients, most of whom suffer from terminal
illnesses. During the September raid, as two dozen armed DEA
agents stormed the Corrals' home and led them away in handcuffs,
agents carted off WAMM's patient records, and seized the patient's
weekly medical marijuana allotments.
The WAMM raid was one of a series of
at least eight medical marijuana raids by federal agents which
have taken place in California. The lawsuit, filed against U.S.
Attorney General John Ashcroft, Acting Administrator of the DEA,
John Brown, and Drug Czar John Walters, seeks to enjoin the federal
government from any future raids on the WAMM cannabis gardens.
The plaintiffs, are also demanding a judicial declaration stating
that the federal government has no right to interfere with WAMM
or similar organizations.
Valerie Corral says WAMM is still distributing
donated cannabis. But since the raid, she says 15 of WAMM's 250
patients have died. Deaths that might have been eased, made less
agonizing, if the collective could again grow cannabis. ``WAMM
members arrive at our supply and our support meetings because
they have no alternative,'' says Corral. ``But our supply is
limited and daily, more of our members face excruciating pain
and agony because we do not have enough medicine to ease that
suffering away.''
The Corrals, who were arrested without
a warrant, have not been charged with any crime. They believe
that the DEA operation was part of a strategy of strictly punitive
raids. The lawsuit seeks both compensatory and punitive damages
from the DEA agents involved in the raid, as well as local law
enforcement officers who participated. Government officials acting
outside the U.S. Constitution have no protection from lawsuits,
and plaintiffs are demanding a jury trial if the government contests
the case.
San Jose Police Chief William Landsdowne
reacted to the WAMM arrests by pulling his department's officers
off the DEA joint task force that conducted the raid. Lansdown
stated that it was unfair to force his officers to enforce a
federal law that conflicts with California's Compassionate Use
Act.
Fighting Back With
The US Constitution
While resistance by the Bush Administration
has helped stall drug law reform legislation, much of the fight
has moved away from Congress and into the courts. In 1998, the
federal government filed a preliminary injunction to halt the
Oakland Cannabis Buyers' Cooperative (OCBC) from distributing
medical cannabis. While the U.S. Supreme Court ruled in May 2001
that the OCBC could not dispense medical cannabis under ''medical
necessity,'' it did not consider the constitutional rights of
individual patients. Plaintiffs in the WAMM lawsuit, County of
Santa Cruz et. al. v. Ashcroft et. al, charge that the federal
government is violating their Fourth, Fifth, Ninth, and Tenth
Amendment rights.
Plaintiffs in the lawsuit include seven
WAMM patients who say they rely upon medical marijuana to, among
other things, control seizures and severe pain, stimulate appetite
in AIDS wasting syndrome, and ease the nausea caused by cancer
treatments.
Plaintiff Michael Cheslosky says he uses
medical marijuana to ease his many medical problems associated
with AIDS/HIV. ``I'm scared to death that at any moment the door
will be knocked down and my five grams of marijuana will be taken
out of my house,'' said Cheslosky who is recovering from pneumonia.
``When I use marijuana, I don't have to use Chlorophen, Valium
and Vicodin and morphine and pain killers and anti-anxiety agents
and anti-depressants or aspirin even. I can control the dose
and it has no side effects.'' Pat Ramey, caregiver for WAMM plaintiff
Dorothy Gibbs, says medical marijuana is the only medicine that
eases the pain of Gibbs' post polio syndrome. ``She is 93 years
old and she has the right to die with some dignity,'' says Ramey.
WAMM members argue that the seizure of
their medical marijuana violates the due process clause of the
Fifth Amendment which protects unenumerated liberties from federal
intrusion if they are fundamental rights. The Ninth Amendment
also protects unenumerated liberties, which plaintiffs say include
the fundamental right to ameliorate pain, maintain bodily integrity,
preserve life, consult with their physicians regarding treatment,
and act on the physician's recommendations. ``We have five justices
on the Supreme Court who recognize that the right to control
the circumstances of your death is a fundamental right,'' said
Uelmen.
In addition to the violation of their
Fifth and Ninth Amendment rights, WAMM charges that the raid
violated their Fourth Amendment right to be free from unreasonable
search and seizure, and the Tenth Amendment which grants the
state powers not exercised by the federal government. The lawsuit
excoriates the federal government for violating the right of
Santa Cruz municipal authorities to protect the health and safety
of its citizens under its police powers.
DEA Spokesman Richard Meyer declined to comment directly on the
pending lawsuit. But he noted that the FDA has refused to reclassify
marijuana from a Schedule One drug, meaning it has no established
medical use and a high potential for abuse. ``The court will
have the last word, but we feel we are on very firm legal ground
when we come to this issue of marijuana,'' said Meyer. ``Marijuana
advocates don't want to stop at marijuana. Their ultimate goal
is to make every drug legal and make it an issue of personal
choice, and I don't think the American public wants that.''
The lawsuit charges that by attempting
to regulate medical marijuana under the Controlled Substances
Act,the federal government is exceeding Congress' authority under
the Commerce Clause. WAMM points out that their cultivation and
possession of medical marijuana takes place within the borders
of California. Their patients do not purchase marijuana, sell
it or distribute it to others. They argue, therefore, that WAMM's
intrastate and non-economic activities have no effect on interstate
commerce and are beyond the power of Congress to regulate. ''Unless
enjoined,'' reads the lawsuit, ``the federal government will
continue to conduct medical marijuana raids that exceed federal
authority under the Commerce Clause.''
Medical marijuana clubs that charge patients
present different issues for the Commerce Clause argument. But
the WAMM lawsuit could help shield other medical cannabis growers
from prosecution. Plaintiffs are also seeking a judicial declaration
that WAMM members are immune from criminal and civil liability
under the Controlled Substances Act. A provision of the Act exempts
from prosecution those deputized by municipalities to handle
controlled substances. In December 2002, the Santa Cruz City
Council adopted a resolution deputizing Valerie and Michael Corral
as medical marijuana providers authorized to enforce the City's
Personal Medical Marijuana Use Ordinance. Mardi Wormhoudt, a
member of the Santa Cruz County Board of Supervisors, says she
was grateful for WAMM's services. ``I know that unless people
were able to help themselves in this way, many people would end
up needing help from county health services, and these are times
that we can barely maintain the services that we do provide for
people.''
The U.S. 9th Circuit Court of Appeals
is currently deciding whether the City of Oakland has the power
to offer the OCBC similar legal immunity. Convicted medical
marijuana grower Ed Rosenthal argued that he too received such
immunity through the OCBC. Uelmen, notes that WAMM has also
filed a motion with the appellate court to have its seized marijuana
returned, and has asked that both cases be heard together this
summer.
Another related case in front of the
9th Circuit involved two medical marijuana patients who sued
DEA chief Asa Hutchinson and Attorney General John Ashcroft
last October. Raich v. Ashcroft charges that the federal government's
ongoing attacks against medical cannabis patients and providers
violated plaintiff's Fifth, Ninth, and Tenth Amendment rights.
Plaintiffs have asked the court to enjoin the federal government
from prosecuting them for growing or possessing medical cannabis.
A federal judge denied a motion for preliminary injunction in
March, and the decision is on appeal.
Should the courts decide that the City
and County of Santa Cruz can immunize the Corrals from prosecution,
the next question is whether the local government is willing
to grow medical cannabis for WAMM patients. Twelve days after
the September raid, City of Santa Cruz demonstrated its support
for WAMM by allowing members to collect their weekly allotment
of medical marijuana on the steps of City Hall. San Francisco
is now considering whether it will grow medical cannabis for
its patients. But Santa Cruz major Emily Reilly, says she has
not yet been asked to consider the issue.
"I think its imperative that it
happen,'' says Michael Corral. "We do need to get more
governmental bodies behind us to push the issue to the feds,
because this is real, this is not going away.'' Corral predicts
that more communities will begin to file similar lawsuits in
support of local medical marijuana patients. But he adds that
while WAMM would like to plant another cannabis garden this spring,
they do not want to put a private property owner at risk for
asset forfeiture.
Michael Foley knows for sure that the
federal government's current crackdown on medical marijuana is
not yet going away. A few hours after WAMM announced its lawsuit,
Foley's partner, Robyn Few, sat sobbing in San Francisco federal
district court as he was sentenced to five months in federal
prison for growing 95 medical marijuana plants. Foley is among
at least eight people sent to federal prison for cultivating
medical marijuana in California in the last two years.
Ann Harrison
is a freelance reporter working in the Bay Area. She can be reached
at ah@well.com
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