HOLDING FIRM ON THE RIGHT TO POT

A Simi Valley man is suing police for pulling up his plants. The
1996 state law allowing use by sick people is generating court fights and
even insurance claims.

Rex Dean Jones, a feisty 64-year-old retiree, says he
never intended to pick a fight with the Police Department in this
law-and-order town. But a fight is exactly with he got.

Two years ago, Jones went to the police station with his wife,
Lillian, 84, and told authorities he was growing marijuana in their
back yard. He presented a doctor's note and explained that, under a
1996 state law, he believed he was allowed to grow the drug for his
medical use.

The next day, Jones was arrested on suspicion of felony marijuana
cultivation and his 14 pot plants were uprooted. Ventura County
prosecutors later dropped the charges after checking with Jones'
doctor and confirming that he was a qualified medical marijuana patient.

Now Jones is suing the Simi Valley Police Department for false arrest.
He recently became one of a handful of Californians ever reimbursed by
an insurance company for seizure of marijuana plants.

Jones and his wife received a check in April for $6,850 from Farmers
Insurance Group, which concluded that the plants fell within the
section of her homeowner's policy that covers "trees, shrubs, plants
and lawns."

"It makes me feel that my rights are being upheld," said Jones, who
has a doctor's recommendation to use marijuana to treat symptoms of
diabetes, high blood pressure, skin cancer, back pains and migraines.

"Other people like myself have a right to do what they are doing
without being hassled or harassed," said Jones, who is back to growing
his own marijuana. "Leave the senior citizens alone."

Jones' case is among the first of its kind to spin out of California's
medical marijuana law, which has been entangled in legal disputes for
years.

Approved by voters in 1996, Proposition 215 allows seriously ill
people to use, grow and obtain marijuana for medical purposes with a
doctor's recommendation. But the measure runs contrary to federal law
and is silent on how patients are to obtain the drug or how many
plants they can grow for medical use.

The latest development came last week when a federal judge reversed
his own 1998 order and ruled that an Oakland cannabis buyers club
could dispense marijuana to seriously ill patients.

Federal prosecutors had shut down six cannabis clubs in Northern
California, saying the drug is illegal under U.S. law. When the
Oakland club refused to close, U.S. District Judge Charles Breyer
ordered it shut down.

The club appealed to the U.S. 9th Circuit Court of Appeals, which last
fall found that Breyer had not weighed the public's interest.

At the same time, implementation of the state law has varied widely
from one jurisdiction to another.

In San Francisco, the district attorney this month unveiled an
identification card system that allows sick people with doctors' notes
access to marijuana.

But in Thousand Oaks, a cannabis club was shut down after the district
attorney filed a lawsuit alleging that the business was operating
illegally and was a threat to public health.

"The whole thing is truly a can of worms at this point," said Ventura
County Deputy Dist. Atty. Bill Redmond, who dropped the charges
against Jones. "Should it be a county-by-county decision or should
there be a set of directives from the state?"

So far, state legislators have steered clear of the
issue.

Last year, a group of police officers, medicinal marijuana advocates
and doctors recommended that the state establish a voluntary registry
of patients to protect them from arrests. But the proposal went nowhere.

"I don't see a widespread distribution," said Andrea Nagy, former
owner of the Ventura County Medical Cannabis Center who fought
unsuccessfully to keep her cooperative open.

"It's tough locally," Nagy said. "If you're seriously ill, you'd
better live in the Bay Area."

In the absence of firm guidelines, police officers have made arrests
and seized plants in cases where they suspect people are cultivating
marijuana for illegal sale instead of personal use.

A Camarillo couple, Lisa and Craig Schwartz, were arrested on felony
marijuana cultivation charges last year after the Ventura County
Sheriff's Department raided their home and seized 68 pot plants. Their
case is pending.

Marijuana advocates say insurance payouts may be one way that
qualified patients can recoup their losses from such seizures.

"The only reason it's happening is that the police aren't respecting
their rights," said San Francisco attorney J. David Nick, who is
representing Jones in his civil case and Lisa Schwartz in her criminal
case.

"People are desperate in order to make the politicians respond to the
will of the people," Nick said. "The hope is that when the insurance
companies deal with enough claims, they will put pressure in the
appropriate place in Sacramento."

The first known reimbursement occurred eight months ago when a
71-year-old Northern California man, Robert DeArkland, received $6,500
from his insurance company after police seized 13 pot plants from his
garage.

Nick, who has defended medical marijuana users across the state, said
he knows of several claims that are pending and some that have been
rejected.

Insurance regulators acknowledge that, given the current state of the
law, more claims are likely.

"I wouldn't consider two cases as a trend, but it is possibly the
beginning of more to come," said Mike Silva, deputy press secretary
for the California Department of Insurance. Farmers Insurance
representatives said Jones' claim was the first they've handled.

"I really don't think it is very common," said Kitty Miller, a Farmers
spokeswoman who said such reimbursements are permissible if damaged
pot plants are legal and covered by the policy.

While medical marijuana advocates argue that payouts from powerful
insurance companies lend legitimacy to their efforts, Miller said
politics has nothing to do with it.

"It simply means it is something under the law that was not covered
before and is covered now," Miller said. "We don't have a position on
it at all."

In February 1999, Jones sued the Simi Valley Police Department,
alleging that officers illegally arrested him and seized marijuana
plants he was cultivating for medical use.

contends that its officers acted appropriately, given the state of the
law at the time.

Jones filed his insurance claim a few months after filing the lawsuit,
and although the reimbursement doesn't come close to covering the loss
of his plants--valued at between $3,000 and $4,000 each--he said it is
rewarding nonetheless.

"I think for me it is the knowledge that I have the right to grow an
herb for my own spiritual and physical well-being," said Jones, who
describes himself as a street preacher.

"Hey," he said, "I'm just a Simi Valley senior citizen standing up for
my rights."

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