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Wo/Men's Alliance for Medical Marijuana (WAMM)
The facts about: the County of Santa Cruz et. al. vs. Gonzales et. al

 

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Important Documents
 
The Complaint
  WAMM Order (.pdf)
  Motion for Preliminary Injunction

  Judicial Notice Request
  WAMM Protocols and Guidelines

Meet the Plaintiffs

  More about the Plaintiffs

  Their Declarations

  1.   Valerie Corral

  2.   RIP Eladio V. Acosta (of cancer)

  3.   Jennifer Lee Hentz

  4.   Harold F. Margolin

  5.   Levi Castro - Quadriplegic &  business
      owner More soon...

  6.   RIP Dorothy Gibbs
      (of Post-polio complications)

  7.   RIP James Daniel Baehr

  8.   RIP Michael Cheslosky
      (of AIDS/Bone Cancer)

     

Supportive Pleadings

  Arnold S. Leff M.D.

  Earnest H. Rosenbaum M.D.

  Harvey L. Rose, M.D.

  Neil Flynn, M.D.

  Robert Brody, M.D.

 

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1.                                                                  INTRODUCTION

2                              1.         The State of California and its political subdivisions, including Plaintiff

3 County of Santa Cruz, and Charter cities, including Plaintiff City of Santa Cruz, have enacted

4 legislation and other measures to help their sick and dying citizens responsibly obtain a

5 physician-recommended medicine that alleviates their suffering and sustains their lives. That

6  medicine is marijuana.

7                             2.           On November 5, 1996, the citizens of California approved Proposition

8 215, the Compassionate Use Act, California Health & Safety Code 11362.5, which makes it

9 lawful for patients to cultivate and use marijuana for medical purposes when they do so with the

10   recommendation or advice of their physicians. As part of their broad power to legislate and

11 regulate for the welfare of their citizens, the County and City of Santa Cruz authorize and

12 oversee the Wo/Men's Alliance for Medical Marijuana ("WAMM"), also a Plaintiff in this

13 action. WAMM is a collective composed of seriously ill patients, some of them Plaintiffs, who

14 cultivate their own medical marijuana and use that marijuana in accordance with the advice and

15 recommendations of their physicians. WAMM is also a community of seriously and terminally

16 ill members that gathers weekly to provide its members with care, support and education, and to

17 assist its dying members in living out their final days with dignity, and without unnecessary pain

18 and suffering.

19                              3.          Under color of the Controlled Substances Act ("CSA"), the federal

20 government has embarked upon a crusade to disrupt WAMM's lawful activities and to deprive

21 these patients of their medicine, violating the patients' rights secured by the Due Process Clause.

22 These rights -- which ensure bodily integrity, freedom from unnecessary suffering, the ability to

23 consult with their physicians and to act on their physician's recommendations, and the ability to

24 control the circumstances of their own deaths -- insulate WAMM's activities, and those of its

25 members, from such federal interference.

26                              4.          In addition, the government's actions impermissibly undermine the

27 authority and power of local and state governments. WAMM members cultivate and use their

28 medical marijuana entirely within California, they do not purchase their medical marijuana, and

 

COMPLAINT FOR PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF,

DECLARATORY RELIEF, AND DAMAGES

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1 they do not sell or distribute marijuana to others. Therefore, the CSA, which targets drug

2 distribution and other activities that impact interstate commerce, does not authorize federal

3 interference with WAMM's activities.

4                             5.          Plaintiffs, the County and City of Santa Cruz, WAMM, and individual

5 WAMM members, bring suit to halt and redress these constitutional violations.

6                                                          JURISDICTION AND VENUE

7                             6.           The claims for damages in this action arise under the Fourth, Fifth, Ninth

8 and Tenth Amendments to the U.S. Constitution. See Bivens v. Six Unknown Named Agents of

9 Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971); Davis v. Passman, 442 U.S. 228, 244

 

10 (1979); Kotarski v. Cooper, 799 F.2d 1342, 1345 (9th Cir. 1986), vacated on other grounds,

 

11      Cooper v. Kotarski, 487 U.S. 1212, 1212 (1988).

12       7.           The claims for declaratory relief in this action arise under the Fifth, Ninth,

13 and Tenth Amendments to the United States Constitution; Article I, 8 of the Constitution; 21

14       U.S.C. 885(d); and 28 U.S.C. 2201.

 

15                              8.          The claims for injunctive relief arise under the Fifth, Ninth, and Tenth

 

16 Amendments of the Constitution; Article I, 8 of the Constitution; and 5 U.S.C. 702.

17       9.           This court has subject matter jurisdiction over this action under 28 U.S.C.

18 1346(a)(2) because the United States is a defendant, and under 28 U.S.C. 1331 because the

19       case involves a federal question.

20                              10.        Venue in this court is proper under 28 U.S.C. 1391(e)(2) because a

 

21       substantial part of the events giving rise to this claim occurred in this district, and under 28

 

22       U.S.C. 1391(e)(3) because the Plaintiffs reside in this judicial district.

23                                                                           PARTIES

24                                                                            Plaintiffs

25                              11. Plaintiff COUNTY OF SANTA CRUZ, CALIFORNIA ("County of Santa

26 Cruz" or "County") is a political subdivision of the State of California. The County of Santa

27 Cruz is empowered under Article XI, 7 of the California Constitution to make and enforce

28 ordinances and regulations dealing with local affairs that do not conflict with general laws. The

 

COMPLAINT FOR PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF,
DECLARATORY RELIEF, AND DAMAGES

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1 County has broad discretion in determining what are proper exercises of the police power

2 delegated to it by the State of California for the protection of public health and what measures

3 are necessary to meet particular health conditions or emergencies. See Jew Ho v. Williamson,

4       103 F. 10, 21 (C.C. Cal. 1900).

5                             12.        Pursuant to its mandate to protect and promote local health, the County of

6 Santa Cruz officially supports the use of medical marijuana for treatment of seriously ill patients.

7 Toward that end, the County adopted the Santa Cruz County Medical Marijuana Ordinance,

8 Santa Cruz County Code 7.122.010-7.122.060 ("the County Ordinance") on November 3,

9        1992. One of the County Ordinance's purposes is to "direct the elected officials of Santa Cruz

10 County to take whatever actions may be within their power to support the availability of

11  cannabis/marijuana for medical use." Santa Cruz County Code 7.122.020(C). The County

12 Ordinance provides that the Board of Supervisors shall request that the sheriff and district

13 attorney exercise whatever discretionary powers they possess to minimize the negative impacts

14  of current marijuana restrictions where medical use is apparent. Santa Cruz County Code

15 7.122.050(B). The County Ordinance also provides that the board of supervisors shall direct

16 the Santa Cruz County Health Services Agency to monitor medical marijuana developments,

17 including research projects, trial studies, or current government programs, and to make available

18 to doctors and patients upon request accurate and timely information regarding the efficacy of

19 marijuana for various medical conditions. Santa Cruz County Code 7.122.050(C).

20                              13.         In enacting the County Ordinance, the County of Santa Cruz made

21 findings regarding the safety and effectiveness of marijuana as medicine. The County found that

22 scientific and medical studies by the National Academy of Science showed that marijuana is a

23 safe and effective medicine with low toxicity compared to most prescription drugs. The County

24 also found that marijuana has been shown to be effective in the treatment of glaucoma; epilepsy;

25 spasticity; arthritis; anxiety; depression; the nausea, vomiting, and appetite loss associated with

26 chemotherapy; and the symptoms of withdrawal from alcohol and narcotics. Santa Cruz County

27 Code 7.122.040(A). The County also found that studies show that one-third of all cancer

28 patients discontinue potentially life-saving chemotherapy due to its severe and debilitating side

 

COMPLAINT FOR PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF,
DECLARATORY RELIEF, AND DAMAGES

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1      effects. According to the County's findings, the same is true for many AIDS patients receiving

 

2 AZT or other therapies. Santa Cruz County Code 7.122.040(B).

 

3                             14. Plaintiff CITY OF SANTA CRUZ, CALIFORNIA ("City of Santa Cruz"

 

4 or "City") is a municipal corporation located in the County of Santa Cruz in the State of

5 California. It is empowered under Article XI, 5(a), 5(b) and 7 of the California Constitution

 

6 to make and enforce ordinances and regulations dealing with municipal affairs that do not

 

7 conflict with general laws. This grant of authority, sometimes called the "Home Rule," gives the

 

8 City broad police power to regulate, among other things, the public health within its jurisdiction.

 

9 See Crown Motors v. City of Redding, 232 Cal. App. 3d 173, 178 (1991).

10 15. Pursuant to Article XI, . 3(a) of the California Constitution, the City of

11 Santa Cruz adopted a charter. Under Section 401 of the Charter of the City of Santa Cruz, the

12 City has the power to make and enforce all laws and regulations dealing with municipal affairs

13 subject only to limitations provided in the Charter or in the State Constitution. The Charter also

14 gives the City the power to exercise any and all rights, powers and privileges established by any

15 law of the State, by the Charter, or by other lawful authority, or that a municipal corporation can

16 exercise under the State Constitution.

17                              16.        The Constitution and the City Charter give the City broad authority to

 

18 enact and enforce regulations promoting and protecting local health. Acting pursuant to the

19 City's police power to protect the health and welfare of its residents, in 2000 the City of Santa

20 Cruz enacted the Personal Medical Marijuana Use Ordinance, Santa Cruz Municipal Code

21       6.90.010-6.90.090 ("the City Ordinance"). Among other things, the City Ordinance allows the

22 City to officially recognize a "medical marijuana provider association," which is defined as "a

23 collective of individuals comprised of qualified patients and primary caregivers, the sole intent of

24 which is to provide education, referral, or network services and to facilitate/assist in the lawful

25 production, acquisition, and provision of medical marijuana to qualified patients." Santa Cruz

26 Municipal Code 6.90.010(4). The City of Santa Cruz officially recognizes WAMM as a

27 medical marijuana provider association. To ensure that qualified patients are not subject to

28 criminal prosecution or sanction, the City Ordinance provides that recognized medical marijuana

 

COMPLAINT FOR PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF,
DECLARATORY RELIEF, AND DAMAGES

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1 provider associations may issue valid identification cards to qualified patients and primary

2 caregivers upon receipt of a physician's written recommendation for medical marijuana. Santa

3 Cruz Municipal Code 6.90.020(2). It also provides that medical marijuana provider

4 associations may issue valid identification cards "upon the physician s written declaration or

5 confirmation that the qualified patient is under the physician's care," for medical conditions for

6 which the physician has approved the use of marijuana, which include, but are not limited to,

7 "HIV/AIDS, cancer, glaucoma, epilepsy or other spasticity-related illnesses, migraine, [and]

8 anorexia." Santa Cruz Municipal Code 6.90.020(2) and 6.90.010(2).

9                              17.        To obtain official City recognition as a medical marijuana provider

10 association, the association must, among other things: (1) not predicate participation upon a

11      patient's ability to pay for services or medical marijuana; (2) strictly prohibit patients and their

12 primary caregivers from selling or distributing medical marijuana; (3) have regulations that

13 require the immediate termination of participation by a patient or primary caregiver who misuses

14 the association's services, misrepresents his or her qualifications to participate, or otherwise

15 violates association rules; and (4) have regulations limiting attendance at medical marijuana

16 provision sites to qualified patients, primary caregivers, and cultivators. Santa Cruz Municipal

17      Code 6.90.020(4)(e), (4)(h), (4)(i), (4)(j) and (4)(k).

18                              18.        The City Ordinance also provides that the City of Santa Cruz may

19 deputize individuals and organizations to function as medical marijuana providers to assist the

20 City in implementing the City Ordinance and the Compassionate Use Act. Santa Cruz Municipal

21 Code 6.90.080. On December 10, 2002, the Santa Cruz City Council adopted a resolution

22 deputizing WAMM, plaintiff Valerie Corral, and her husband and primary caregiver Michael

23 Corral to function as medical marijuana providers. By virtue of their status as deputies, WAMM

24 is authorized to assist the City of Santa Cruz in administering the City Ordinance and the

25 Compassionate Use Act.

26                              19.        To demonstrate its support for WAMM in the wake of the DEA raid,

27 plaintiff City of Santa Cruz allowed WAMM patients to collect their weekly allotment of

28 medical marijuana on the front steps of City Hall on September 17, 2002. Six of seven members

COMPLAINT FOR PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF,
DECLARATORY RELIEF, AND DAMAGES

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