ASA Legal Campaign Update

Americans for Safe Access (ASA) has had a very active legal campaign in
2004. In addition to training over 400 public defenders in California on
current medical marijuana law, and providing critical legal information
to hundreds of patients, caregivers, public officials and attorneys, ASA
is assisting in and working on many pending cases related to medical
marijuana. This message is intended to update you on some of these cases.

REVIEW OF ASA’S LEGAL CAMPAIGN

Criminal

Michael Teague
ASA has always made it a priority to provide court support and legal
assistance in federal cases. As such, ASA has assumed legal
representation for medical marijuana patient Michael Teague. After
serving over 16 months in federal prison, Michael was recently released
to a half-way house to finish up his sentence. He is scheduled to go on
supervised release as of January 9, 2005.

Michael was sentenced to eighteen months for cultivating only 108
plants. The low number of plants indicates that Michael was targeted
for a federal criminal prosecution after the state prosecutor declined
to press charges because it was a medical marijuana case.

ASA will soon file Michael's appeal, based in part on Fifth
Amendment violations stemming from a lengthy delay in preparing
transcripts critical to his appeal. This unnecessary delay kept Michael
in prison while others in similar circumstances were being released on
bail pending appeal.

*****

Return of Property

An update on ASA's Return of Property campaign in California was
recently sent out, and can be accessed by visiting the following web
page: http://www.safeaccessnow.org/article.php?id=1624

In a nutshell, ASA is attempting in a variety of ways to help patients
and caregivers fight back against wrongful seizure. Much organizing has
been done around patients filing motions for return of property across
California, but here is a sense of what else ASA is doing.

James Blair
ASA is representing medical marijuana patient and cultivator James Blair
in filing a civil suit against the City of Emeryville and Emeryville
Police Department for damages resulting from his wrongful arrest and the
seizure of his medicine. ASA is using the Bane Civil Rights Act to seek
triple damages for Blair and attorneys fees for the organization. This
case not only hits law enforcement in the wallet, but allows the issue
of return of property to be discussed in the media (the case has
already received media attention).

Michael Lee
ASA is filing a lawsuit in federal court on behalf of San Leandro
patient Michael Lee who had 99 marijuana plants seized from him
in 2000 by the Contra Costa Sheriff Department. After charges against
him were dismissed, Michael filed a motion for return of property. The
court denied the motion on the grounds that the case was still under
investigation and that the statute of limitations had not run out.
Michael then waits three years and with ASA's assistance files another
motion for return of property. At an August 2004 hearing, Michael finds
out that police have destroyed his property without his consent. The
judge denied the motion for return of property, but made comments that
are extremely helpful for taking Michael's case to federal court to
argue Fifth and Fourteenth Amendment (due process) violations. This may
result in damages for Michael, but just as importantly may also create
good publicity for a federal court to rule that local law enforcement is
violating law by seizing and destroying medicinal marijuana.

Martin Watson
Humboldt County patient Martin Watson had just under a pound of medical
marijuana seized from him by California Highway Patrol (CHP). After his
case was resolved, Martin was granted a court order for return of
property. However, when Watson attempted to obtain his property from the
CHP, he was informed that it had been transfered to the Drug Enforcement
Administration. ASA is representing Martin in holding both CHP and DEA
in contempt of court given that the CHP did not seek a turnover order
and did not notify Martin of the transfer until after the fact.

*****

CHP Lawsuit

The California Highway Patrol (CHP) has one of the more repressive
policies with regard to encounters with medical marijuana patients. In
defiance of SB420, allowing for the transportation of medical marijuana,
the CHP has a policy that instructs officers to seize patient and
caregiver medicine regardless of any documentation provided. The CHP
General Law Enforcement Policy Manual states that "Even if [medical
marijuana patient status] is alleged, all marijuana shall be confiscated
and booked as evidence..."

ASA is committed to challenging this policy and the treatment of
patients at the hand of the CHP. As such ASA is planning a group action
for January 2005 with multiple plaintiffs challenging the CHP's policy
as violating state law. ASA will seek declaratory injunctive relief
without impairing plaintiffs' ability to seek separate damages. ASA is
now in the process of selecting potential plaintiffs who have been
either arrested or cited by CHP and had property seized.

*****

Employment & Housing Discrimination

Employees and tenants are also being punished for exercising their right
to use marijuana medicinally. We currently represent two employees in
California who were fired after testing positive for medical marijuana,
even though they never did so at work. Within two weeks, they were also
denied unemployment. We are currently appealing the denial of
unemployment in one case (the client is a very sympathetic sanitation
engineer who was fired after 25 years of exemplary service, just a few
years before his retirement), and are just about to do the same in the
other. The claim is that an employer cannot retaliate against an
employee for exercising his or her statutory right to use marijuana for
medical use. If we win, we may be able to prevent numerous unlawful
terminations of medical marijuana patients. Indeed, for a third employee
who was threatened with termination, we wrote a letter to the employer,
who agreed that no discipline would be imposed upon our client, so long
as she did not come to work under the influence of marijuana.

ASA has also done research in the area of housing discrimination as
applied to medical marijuana patients and has offered assistance to Fair
Housing Council of San Fernando Valley in a southern CA eviction case.

*****

Child Custody

Multiple Sclerosis patient Dianna Davis who lives in South Carolina had
her children taken from her custody by the SC Department of Social
Services (DSS) because of her medical marijuana use. ASA has assisted
with developing a strategy with Dianna for regaining custody of her
children. The strategy has included utilizing medical necessity as an
argument and defense for Dianna's use of medical marijuana and obtaining
a statement from her practitioner which acknowledges her cannabis use
and denies any harm it may cause to her ability to care for her children.

*****

Protecting Physicians’ right to recommend medical marijuana

On May 7, 2004, the Medical Board of California issued a statement
entitled "California Physicians and Medical Marijuana," which purports
to provide guidance to physicians on how to evaluate patients for
medical marijuana recommendations. These highly restrictive
"suggestions" seem part of the deep-seated efforts of the Medical Board
to seek sanctions against doctors who regularly recommend marijuana to
their patients.

We have represented one doctor who was targeted for disciplinary
proceedings after the mother of the 18-year-old patient found marijuana
in his room (and kicked him out of the house). Whereas the prosecutor
was demanding five years probation and $6,200.00 in investigation costs
when we entered the case, they nearly dismissed the case after ASA made
an appearance and filed a sixteen-page Settlement Conference Statement
dismantling their expert’s evaluation of the case.

The case was recently dismissed after an agreement was reached between
parties which included no admission of guilt and the prosecution waiving
costs of at least $6,000. (ASA was told that it was very rare for the
Board to waive all costs and the Judge stated that she had never seen
this before.)

*****

General Legal Info

ASA has consulted in dozens of cases involving employment and housing
discrimination, as well as child custody. ASA provides ongoing criminal
defense information over the phone and has accumulated a database of
over 200 such cases. The component of ASA’s legal campaign that provides
advice over the phone has resulted in the education of numerous
attorneys and patients alike.



--
Kris Hermes
Legal Support Coordinator
Americans for Safe Access
http://www.SafeAccessNow.org
1700 Shattuck Ave. #317
Berkeley, CA 94709
Phone: 510-486-8083 x307
Fax: 510-486-8090
Email: kris [at] SafeAccessNow.org

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