• Medical Marijuana User Can Sue County for a Sheriff Deputy's Wrongful Order to Destroy His Marijuana Plants
  • July 20, 2009 | Author: Mona Ebrahimi
  • Law Firm: Kronick Moskovitz Tiedemann & Girard, A Law Corporation - Sacramento Office
  • In County of Butte v. The Superior Court of Butte County, (--- Cal.Rptr.3d ----, Cal.App. 3 Dist., July 01, 2009), a California Court of Appeal considered whether a medical marijuana user could sue a county for violating his constitutional rights when a sheriff’s deputy ordered him to destroy marijuana plants he lawfully possessed pursuant to the Compassionate Use Act of 1996 (“Act”). The court ruled that the California constitution’s guarantee of due process and protection from unreasonable search and seizure apply to medical marijuana users the same as anyone else, and that the marijuana user had a right to bring a civil action alleging so.

    David Williams was a medical marijuana user and a member of a collective in Butte County (“County”) that cultivated marijuana for medical use. In September 2005, a county sheriff’s deputy came to his home without a warrant and ordered Williams, under threat of arrest and prosecution, to destroy his marijuana plants. Williams produced copies of the medical marijuana recommendations for himself and the other members to show that the marijuana was legal. The deputy then ordered Williams to destroy all but 12 of the 41 marijuana plants he possessed. Williams complied.

    Williams sued the County alleging various violations of his constitutional rights. The County demurred, claiming Williams had no legal right to bring a civil action over the destruction of his marijuana and that his only venue to seek relief would be through a defense in a criminal case. The trial court overruled the demurrer, and the County appealed.

    The Act, approved by voters in 1996, specified that prohibitions against possessing and cultivating marijuana do not apply to a patient or caregiver who possesses or cultivates it for medical purposes upon the recommendation of a physician. Williams’ possession and cultivation of marijuana were for such medical purposes, the court noted.

    The court rejected the county’s argument that in People v. Mower (2002) 28 Cal 4th 457, the California Supreme Court disallowed civil suits brought pursuant to the Act. Rather, the court said, the Supreme Court in Mower determined that the Act does not afford medical marijuana users complete immunity from arrest because of their status as patients. “Nothing in Mower speaks to the issue of a civil action for violation of a qualified patient’s constitutional rights,” the court said.

    Williams was seeking adjudication to determine whether the deputy violated his constitutional rights by ordering him to destroy his property without probable cause. This guarantee of due process is available to all individuals, medical marijuana users and non-users alike, under the state Constitution. “The fact that this case involves medical marijuana and a qualified medical marijuana patient does not change these fundamental constitutional rights or an individual’s right to assert them,” the court said.

    It was also irrelevant that cultivation and possession of medical marijuana, while permitted in California under the Act, remain violations of federal laws, the court said. The deputy was acting under color of California, not federal law, and there are no decisions holding that federal law renders the Act unconstitutional or otherwise unenforceable, the court concluded.

    The court denied the County’s appeal.