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Medical pot users, growers can sue over raids

Bob Egelko, Chronicle Staff Writer
Thursday, July 2, 2009

Medical marijuana patients and growers can sue police for illegally raiding their property and destroying their plants, a state appeals court ruled Wednesday.

The 2-1 decision by the Third District Court of Appeal in Sacramento was the first in the state to allow a patient or grower to sue claiming that their rights to cultivate and use medical marijuana have been violated. Those rights are protected by state law but banned by federal law.

Officials in Butte County, where the case arose, argued that patients and suppliers can invoke the medical marijuana law only as a defense to criminal charges, not to sue for damages. The court's dissenting justice said no one is entitled to compensation for the destruction of a drug banned under federal law.

But the court's majority said a marijuana patient or member of a collective has the same right as anyone else to sue officers who violate the constitutional ban on illegal searches and seizures.

The plaintiff, David Williams, is relying on "the same constitutional guarantee of due process available to all individuals," Justice Vance Raye said. He said Williams is not required to go through "the expense and stress of criminal proceedings" to assert his rights.

Williams belonged to a seven-member collective near the town of Paradise. When a sheriff's deputy came to his door without a warrant in September 2005, Williams showed doctors' recommendations for all seven patients that allowed them to grow and use marijuana, he said.

He said the officer had questioned the legality of the collective and ordered him to destroy 29 of the 41 plants on his property or face arrest. He complied, then sued the officer and the county for damages. Wednesday's ruling upheld a Superior Court judge's refusal to dismiss the suit.

In a dissenting opinion, Justice Fred Morrison said Congress should ease the federal ban on marijuana to accommodate California and 12 other states that allow medical use. But as long as the ban exists, he said, no one has the right to use the drug, and police are entitled to confiscate it.

Brad Stephens, a deputy county counsel, said the county would probably appeal to the state Supreme Court.

E-mail Bob Egelko at begelko@sfchronicle.com.

Medical pot users, growers can sue over raids

This article appeared on page B - 3 of the San Francisco Chronicle

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