MEDICAL MARIJUANA SUIT COULD BREAK NEW GROUND

A Superior Court case heard in Chico is raising the question whether
a medicinal marijuana case can be tried in civil court -- a step that
would open up law enforcement to fighting lawsuits from people who
have plants confiscated or destroyed.

"This is new ground we're breaking," Judge Barbara Roberts said at
the beginning of the discussion Friday morning.

The case involves a man who was approached by a Butte County
sheriff's deputy for growing too many marijuana plants. David
Williams and his spouse both had prescriptions for medicinal
marijuana use. But Williams was growing 42 plants in a "collective"
medicinal garden.

Collectives were OK'd in March 2002 by the Legislature, said Joe
Elford, a lawyer for Americans For Safe Access, an advocacy group for
medical marijuana therapeutics and research.

But the definition of "collective" is vague and has not been clearly
defined throughout the state.

Elford said it is up to each county to set policies for medical
marijuana cultivation.

Most counties allow up to six mature plants for each person with a
medical marijuana prescription, and up to six immature plants. In
Butte County a person can also have one pound of harvested marijuana.

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that details policy for medical marijuana use.

In the case of Williams, the sheriff's deputy told him he needed to
relinquish all but 12 plants -- six for himself and six for his wife.

This was done and Williams was not charged with a crime.

However, Williams later filed a suit against the county in civil
court for damages.

Elford said there is a difference in opinion about what constitutes a
collective.

In some counties, law enforcement considers only the "primary
caregiver" to be allowed to grow marijuana for an ill person, meaning
that caregiver provides other help such as feeding and caring for the
ill person.

Butte County has taken the stance that having someone other than the
caregiver grow the medicine is not consistent with Proposition 215,
the County Counsel's Office said in defense.

Assistant County Counsel Brad Stephens said trying to take the
cultivation case into civil court was not in the spirit of the law
passed by voters. That proposition clearly stated that having a
prescription for marijuana only provided a defense against a charge
in criminal court, he said.

The proposition was written very narrowly for medicinal marijuana
use, Stephens said, and taking it into civil court would open new
doors for people to sue law enforcement.

This might, in the future, lead to law enforcement not being as
lenient about giving medicinal marijuana users a chance to have
plants destroyed rather than face prosecution, Stephens said.

It's sometimes difficult for law enforcement to make judgments about
the number of plants for personal use and what might be excessive for
sale, so protocols need to be established, Stephens said.

Elford said its important that the civil case be accepted by the
courts, because people who use marijuana for illnesses should be able
to grow the medicine for others without threats by law enforcement
that the harvest will be destroyed.

In the Williams' case, they had Proposition 215 waivers for five
other people, which might have allowed 42 plants.

Judge Roberts will make a decision in the next few months whether to
accept the civil case.

[sidebar]

BACKGROUND: Proposition 215, passed by voters in 1996, provided
protection for medical marijuana users against criminal charges.

WHAT'S NEW: A lawsuit brought against Butte County was heard in
Superior Court in Chico Friday, pushing the question about whether
such cases could be heard in civil court, as opposed to criminal court.

WHAT'S NEXT: A judge will decide this summer whether the civil suit
will be allowed to proceed.