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Give Back Our Medical Marijuana

California patients sue to get state law enforcement agencies to return almost $1 million worth of seized marijuana.

In a mass legal action on Tuesday, Aug. 17, 38 California medical marijuana patients filed simultaneous lawsuits demanding that state law enforcement entities return almost $1 million worth of pot seized by police in recent years. California voters approved the use of marijuana for medicinal purposes in 1996, but recalcitrant law enforcement organizations continue to seize marijuana from patients.

In all 38 cases, the plaintiffs had their medicine seized but were never charged with a crime or had the charges dropped. But they have been unable to get police to return their property – the marijuana. Now they are going to court in an effort to get their property back, or at least its cash value, and to try to shock California police into actually upholding and obeying the law.

Under California law, persons whose property was unlawfully seized may seek its return through a court order. If the property has been lost, damaged, or destroyed, plaintiffs are entitled to receive compensation. Each case must be filed separately, as was done Tuesday across the state.

According to a report issued this week by Americans for Safe Access, the group that coordinated the mass filing, illegal seizures of medical marijuana have occurred in more than half of the state's counties. The California Highway Patrol has also illegally seized marijuana from patients, the report found. Additionally, ASA found that eight years after the passage of Proposition 215, the state's Compassionate Use Act, most California law enforcement agencies have no procedures in place to determine who is a legal medical marijuana user.

In the report, which examined only the last three months, ASA found more than 100 cases of police violating patients' rights and seizing their medicine. ASA executive director Steph Sherer blamed the problem on a "culture of resistance" within law enforcement.

"There is more support for medical marijuana in California than ever before," said Sherer in a conference call. "But when we look at the implementation of Prop. 215, it is surprising that we see such a culture of resistance to it among law enforcement."

That reluctance to uphold the law will end up costing California taxpayers millions of dollars in arrest and prosecution costs, as well as millions more in compensation for seized or damaged property, Sherer said. "Patients are standing up for their rights and demanding their property back from the state," she said. "The Compassionate Use Act is not negotiable. Upholding the law is not negotiable. In addition to the return of property, we are asking for policies and regulations for law enforcement that will not only protect the rights of patients and monitor this culture of resistance, but also save money for taxpayers across the state."

Police have had long enough to adapt to the law, said Joe Elford, a constitutional law expert and ASA staff attorney.

"When a substance such as pot has been illegal for so long," he said, "law enforcement cannot be expected to change its attitudes overnight – but it's been eight years. Because police continue to view marijuana as contraband and seize people's medicine, patients have had to stand up for their rights, they have had to go to court to try to get their medicine back. If this works," Elford continued, "we will have won a broader recognition of our rights. If it doesn't, we will see more lawsuits down the line. We don't intend to wait another eight years."

Former California police officer and current medical marijuana patient Kevin Lewis said that even though he considers himself a responsible user, he "fears" the attitude of law enforcement if he is ever found with marijuana. But those attitudes could be changed, Lewis said, and it is up to law enforcement agencies to do so.

"Officer standards and training should make clear that if the person has a medical marijuana ID card and a doctor's recommendation, he should be treated like anyone else possessing a prescription drug. Officers need to review the documents, and if they are in order, let the patients go about their business," Lewis said. "I can't even understand what level of training these officers have or what orders they have to seize property."

Lisa Swartz is one of the patients who filed suit Tuesday. During the conference call, she told of being raided at gunpoint in 1999. "They came with a narc SWAT team, pointing semi-automatic weapons at my grandkids' heads," she said before breaking into tears. "It was a terrible experience and totally changed my view of everything. I used to believe the police were there to protect and defend us. It is just so bizarre that they do this to people," said Swartz. "Even if we get our property back, this still takes a terrible toll on our families."

Swartz spent 18 months and $50,000 defending herself before authorities dropped the charges. "They never apologized and they never gave me my medicine back," she said.

The law enforcement "culture of resistance" to implementing the state's medical marijuana law is centered in the California Narcotics Officers Association, whose 7,000 members make a living enforcing the drug laws. The association, which is the largest law enforcement training organization in the state, says flatly on its web site that "marijuana is not a medicine" and that a well-financed drug legalization lobby has duped the voters of California.

That's a big problem, said California Assemblyman Mark Leno (D-San Francisco). "I have only recently learned that the California Narcotics Officer Association says marijuana is not medicine," Leno said. "I would suggest they need to reread the wording of Prop. 215. That is the will of the voters, and it is not being respected. Prop. 215 clearly states seriously ill Californians have the right to obtain and use marijuana for medical purposes. That is what we are trying to implement."