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.

The District Attorney's Advertisement J & J Lighting & Home Furnishings! Office has a Web site at www.buttecounty.net/da/215.htm 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.

Newshawk: http://www.drugsense.org/donate.htm
Pubdate: Sat, 09 Jun 2007
Source: Chico Enterprise-Record (CA)
Webpage: http://www.chicoer.com/newshome/ci_6100804
Copyright: 2007 The Media News Group
Contact: http://www.chicoer.com/feedback
Website: http://www.chicoer.com/
Details: http://www.mapinc.org/media/861
Note: Does not print letters from outside circulation area
Author: Heather Hacking, Staff Writer
Cited: Americans for Safe Access http://www.americansforsafeaccess.org