Fighting Back in Santa Cruz: Pot Patients Sue the Feds

By Ann Harrison, AlterNet. Posted April 28, 2003.

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 that 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 Lansdowne reacted to the WAMM arrests by pulling his department's officers off the DEA joint task force that conducted the raid. Lansdowne 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. This article originally ran in Counterpunch.

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