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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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  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 Proposition 215 and Arizona Proposition 200," a policy released on December 30, 1996 by the

2 former director of the Office of National Drug Control Policy ("ONDCP"), the predecessor to

3 defendant Walters. The federal policy was promulgated by an interagency working group that

4 included, among other agencies, the ONDCP, the DEA, and the Department of Justice. One of

5 the objectives that the federal task force outlined in its "Response" was to encourage state and

6 local law enforcement officials to continue to continue to make arrests and seizures under state

7 drug laws, leaving defendants to raise the Compassionate Use Act only as a defense to state

8       prosecution.

9                              87.         Without access to medical marijuana, many of the Plaintiffs suffer serious

10 medical consequences. They rely upon medical marijuana to, among other things, control

11 seizures and severe pain, stimulate appetite to avoid the "wasting syndrome" that afflicts AIDS

12 patients, and control nausea caused by cancer treatments. Many of the Plaintiffs are terminally

13 ill and will die more painful deaths without access to medical marijuana. Since the raid, 15

14 WAMM members have died.

15                              88.        In addition to the Compassionate Use Act, California has enacted other

16 laws directed at pain management. for seriously ill patients. In 1990, the Legislature enacted the

17 Intractable Pain Law, Cal. Bus. & Prof. Code 2241.5, which exempts from disciplinary action a

18 physician or surgeon who prescribes or administers controlled substances for treatment of a

19 person suffering from intractable pain. In 1997, the Legislature enacted the Pain Patient's Bill of

20 Rights, Cal. Health & Safety Code 124960-124961, which provides that "[a] patient suffering

21 from severe chronic intractable pain has the option to request or reject the use of any or all

22 modalities in order to relieve his or her severe chronic intractable pain." Cal. Health & Safety

23 Code 124961(a). This includes the use of physician-prescribed opiate medications. Cal.

24 Health & Safety Code 124960(g), (h), and (i). In enacting the Pain Patient's Bill of Rights,

25 the Legislature recognized that "[i]nadequate treatment of acute and chronic pain originating

26 from cancer or noncancerous conditions is a significant health problem." Cal. Health & Safety

27 Code 124960(b). An analysis that accompanied the Legislature's third reading of Senate Bill

28       402, which enacted the Pain Patient's Bill of Rights, indicates that the legislature intended to

 

COMPLAINT FOR PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF,
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1      create a positive legal duty to treat pain and suffering effectively. The bill analysis also indicates

2      that one of the Legislature's goals in enacting the Pain Patient's Bill of Rights was to express

3 "[t]hat treatment for severe, chronic, intractable pain is a fundamental human right."

4          FIRST CAUSE OF ACTION

5          (Injunctive And Declaratory Relief For Deprivation

6          Of The Fundamental Right To Control

7          89       The Circumstances Of One's Own Death)

10   89. The Plaintiffs incorporate by reference the allegations set forth in

paragraphs 1 through 88.

11   90. An actual controversy has arisen and now exists between the Plaintiffs and

the Defendants.

12         91.        The Due Process clause of the Fifth Amendment protects unenumerated

13  liberties from federal intrusion if they are fundamental rights. The Ninth Amendment also

14 protects unenumerated liberties, stating, "The enumeration in the Constitution, of certain rights,

15 shall not be construed to deny or disparage others retained by the people."

16  92.  The DEA's seizure of medical marijuana violated the WAMM patient

17  Plaintiffs' fundamental right to control the circumstances of their own deaths.

18 93. Without medical marijuana, the Plaintiffs will suffer unnecessary pain,

19 seizures, and, in some cases, untimely and more painful deaths. The right to control the

20 circumstances of one's own death is "'deeply rooted in this Nation's history and tradition"' and

21 "'implicit in the concept of ordered liberty"' such that "'neither liberty nor justice would exist"'

22 if it were sacrificed. Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (quoting Moore v.

23 City of East Cleveland, 431 U.S. 494, 503 (1977); Palko v. Connecticut, 302 U.S. 319, 325, 326

24  (1937), overruled on other grounds, Benton v. Maryland, 395 U.S. 784, 794 (1969)). "Avoiding

25 intolerable pain and the indignity of living one's final days incapacitated and in agony is

26 certainly `at the heart of [the] liberty... to define one's own concept of existence, of meaning, of the 27 universe, and of the mystery of human life."' Glucksberg, 521 U.S. at 745 (Stevens, J., concurring) 28 (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992)).

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1                              94. The use of marijuana for medical purposes is also deeply ingrained in this

2 nation's history and tradition. Under common law, use of medical cannabis was not proscribed.

3 When the original 13 states ratified the Bill of Rights, cannabis was in use as a medicine.

4 Indeed, until 1941, cannabis was indicated for numerous medical conditions in the

5 pharmacopoeia of the United States. This nation's long, historical tradition of liberty concerning

 6 the use of medical marijuana contrasts sharply with the relatively recent assertion of federal

7 power to restrict the use of marijuana. The first federal restriction on the sale of marijuana did

8 not appear until almost the middle of the 20th Century, in the form of the Marihuana Tax of

9       1937.

10                              95.        The Plaintiffs desire a judicial declaration that seizure of their medical

11 marijuana violates their fundamental right under the Fifth and Ninth Amendments to control the

12 circumstances of their own deaths. Such a declaration is necessary and appropriate at this time

13 so that the Plaintiffs may implement and enjoy the protections of the duly enacted

14 Compassionate Use Act of 1996 free from federal intrusion. Therefore, under 28 U.S.C. 2201,

15 the Plaintiffs are entitled to a judicial declaration of their fundamental right to control the

16 circumstances of their own deaths.

17                              96.        The Plaintiffs also request injunctive relief protecting them against future

18 seizure of their medical marijuana. Without medical marijuana, the Plaintiffs will suffer

19 irreparable harm by being deprived of the ability to control the circumstances of their own

20 deaths. The Plaintiffs have no adequate remedy at law. The DEA's ongoing policy of seizing

21 medical marijuana is a credible threat of actual harm to the Plaintiffs' Fifth and Ninth

22 Amendment rights.

23         SECOND CAUSE OF ACTION

24        (Injunctive And Declaratory Relief For Violation Of

25        Other Fundamental Rights Secured By

The Fifth And Ninth Amendments)

26   97.                             The Plaintiffs incorporate by reference the allegations set forth in

27 paragraphs 1 through 96.

28.  98.                             An actual controversy has arisen and now exists between the Plaintiffs and

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1      the Defendants.

2                             99.        The DEA's seizure of medical marijuana violated the following

3 fundamental rights of the WAMM patient Plaintiffs, which are secured by the Fifth and Ninth 4 Amendments:

 

5                             the fundamental right to ameliorate pain;

 

6                             the fundamental right to maintain bodily integrity;

7                             the fundamental right to preserve life; and

 

8                             the fundamental right to consult with their physicians regarding treatment and

 

9 to act on the physicians' recommendations.

 

10                              100. Each of these rights is "'deeply rooted in this Nation's history and

 

11       tradition"' and "'implicit in the concept of ordered liberty"' such that "'neither liberty nor justice

12 would exist"' if it were sacrificed. Washington v. Glucksberg, 521 U.S. 702, 721 (1997)

13       (citations omitted).

14                              101. Without medical marijuana, the Plaintiffs will suffer unnecessary pain,

15 seizures, and other severe medical consequences, depriving them of their fundamental rights.

16 "[A] patient who is suffering from a terminal illness and who is experiencing great pain has no

17 legal barriers to obtaining medication, from qualified physicians, to alleviate that suffering...."

18 Glucksberg, 521 U.S. at 736-37 (O'Connor, J., concurring).

19                              102. The California Legislature has secured the fundamental rights of patients

20 suffering from chronic, severe, intractable pain to maintain bodily integrity, ameliorate pain,

21 preserve life, and to consult with their physicians and act on the physicians' recommendations

22 through the Intractable Pain Law and the Pain Patient's Bill of Rights.

23                              103. The Plaintiffs desire a judicial declaration that seizure of their medical

24 marijuana violates their fundamental rights under the Fifth and Ninth Amendments to maintain

 

25       bodily integrity, to ameliorate pain, to preserve life, and to consult with their physicians

26 regarding treatment and to act on their physicians' recommendations. Such a declaration is

27 necessary and appropriate at this time so that the Plaintiffs may implement and enjoy the

28 protections of the duly enacted Compassionate Use Act of 1996 free from federal intrusion.

 

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1      Therefore, under 28 U.S.C. 2201, the Plaintiffs are entitled to a judicial declaration of their

2 fundamental rights.

3                              104. The Plaintiffs also request injunctive relief protecting them against future

4 seizure of their medical marijuana. Without medical marijuana, the Plaintiffs will suffer

5 irreparable harm in the form of unnecessary pain, seizures, and, in some cases, untimely and

6 more painful deaths. The Plaintiffs have no adequate remedy at law. The DEA's ongoing policy

7 of seizing medical marijuana is a credible threat of actual harm to the Plaintiffs' Fifth and Ninth

8 Amendment rights.

9                                                        THIRD CAUSE OF ACTION

10                        (Injunctive And Declaratory Relief: Lack Of Federal Authority)

11         105. The Plaintiffs incorporate by reference the allegations in paragraphs 1

12  through 104.

13         106. An actual controversy has arisen and now exists between the Plaintiffs and

14  the Defendants.

15.        107. The DEA's seizure of the Plaintiffs' medical marijuana exceeded

16         Congress' power to regulate interstate commerce under Article I, 8 of the Constitution. The

17         DEA agents purported to act under color of the federal Controlled Substances Act, 21 U.S.C.

18         801-971, which prohibits cultivation and possession of marijuana. That prohibition is based

19         upon Congress' authority to regulate commerce among the several states.

20         108. Under our dual system of sovereignty, when the State of California

21         exercises its police 21    power to regulate the health and safety of its citizens, Congress may not 22  interfere unless it demonstrates that the activity it seeks to regulate substantially affects interstate

23 commerce. Here, the Plaintiffs' cultivation and possession of medical marijuana took place

24  wholly within the borders of California and was in compliance with state law. WAMM patients

25  do not purchase their medical marijuana, nor do they sell or distribute marijuana to others.

26  Therefore, the Plaintiffs' wholly intrastate, non-economic activities are beyond the power of 27 Congress to regulate because they have no effect on interstate commerce.

28         109. Congress has made no finding that the intrastate cultivation and use of

 

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1 medical marijuana by seriously ill patients with the approval of their physicians, as permitted by

2 California's Compassionate Use Act, has any effect whatsoever on interstate commerce. The

3 findings made by Congress with regard to the Controlled Substances Act address illicit drug use

4 generally, with no application to the discrete, limited class of activity authorized by California

5 law.

6                              110. The Plaintiffs desire a judicial declaration that federal agents lack the

7 authority to seize medical marijuana that is cultivated, possessed, and used wholly within state

8 borders pursuant to state law and which the Plaintiffs do not purchase, sell, or distribute. Such a

9 declaration is necessary and appropriate at this time so that the Plaintiffs may implement and

10 enjoy the protections of the duly enacted Compassionate Use Act of 1996 free from federal

11      intrusion. Therefore, under 28 U.S.C. 2201, the Plaintiffs are entitled to such a judicial

12      declaration.

13                              111. The Plaintiffs also desire injunctive relief protecting them from future

14 federal interference with California's implementation of the Compassionate Use Act. Federal

15 interference, which exceeds federal authority under the Commerce Clause, has caused and will

16 continue to cause the Plaintiffs to suffer irreparable injury to their Constitutional rights. They

17 have no adequate remedy at law. The Plaintiffs can show a credible threat of actual harm to their

18 Constitutional rights. Plaintiffs are informed and believe that at least eight medical marijuana

19 raids by federal agents, including the WAMM raid, have taken place in California, and that these

20 raids are part of a federal policy of disrupting the lawful use of medical marijuana. Unless

21 enjoined, the federal government will continue to conduct medical marijuana raids that exceed

22 federal authority under the Commerce Clause.

23         FOURTH CAUSE OF ACTION
24         (Injunctive And Declaratory Relief For
            Violation Of The Tenth Amendment)

25         112. The Plaintiffs incorporate by reference the allegations in paragraphs 1

26         through 111

27         113. An actual controversy has arisen and now exists between the Plaintiffs and

28         the Defendants.

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