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COUNTY OF SANTA CRUZ, CALIFORNIA v. ASHCROFT

April 21, 2004.

COUNTY OF SANTA CRUZ, CALIFORNIA; CITY OF SANTA CRUZ, CALIFORNIA; VALERIE CORRAL; ELADIO V. ACOSTA; JAMES DANIEL BAEHR; MICHAEL CHESLOSKY; JENNIFER LEE HENTZ; DOROTHY GIBBS; HAROLD F. MARGOLIN; and WO/MEN'S ALLIANCE FOR MEDICAL MARIJUANA, Plaintiffs,
v.
JOHN ASHCROFT, Attorney General of the United States; KAREN P. TANDY, Administrator of the Drug Enforcement Administration; JOHN P. WALTERS, Director of the Office of National Drug Control Policy; and 30 UNKNOWN DRUG ENFORCEMENT ADMINISTRATION AGENTS, Defendants



The opinion of the court was delivered by: JEREMY FOGEL, District Judge

ORDER GRANTING PLAINTIFFS' MOTION FOR RECONSIDERATION

Plaintiffs seek reconsideration of this Court's decision denying their motion for a preliminary injunction and granting Defendants' motion to dismiss the instant action with leave to amend.*fn1 The motion for reconsideration is opposed. The Court has read and considered the papers submitted by the parties and has considered the arguments of counsel presented at the hearing on March 31, 2004. For the reasons set forth below, the motion for reconsideration will be granted.

I. BACKGROUND

  The factual and legal background of the present motion, as set forth in this Court's earlier published opinion, is as follows:

  Plaintiff Wo/Men's Alliance for Medical Marijuana ("WAMM") is a collective hospice organization located in Davenport, California that maintains an office in Santa Cruz, California. See Declaration of Valerie Corral in Support of Plaintiffs' Motion for Preliminary Injunction ("Corral PI Decl."), ¶ 10. It has approximately 250 member-patients who suffer from HIV or AIDS, multiple sclerosis, glaucoma, epilepsy, various forms of cancer, and other serious illnesses. See id. The vast majority of WAMM's members are terminally ill. See id. WAMM assists seriously ill and dying patients by providing them with the opportunity to cultivate marijuana plants for their personal medicinal use and to produce marijuana medications collectively used by members to alleviate their pain and suffering. See id. ¶¶ 13, 18. Both the cultivation and use of marijuana by WAMM members are carried out only on the recommendation of the patients' respective physicians in compliance with California's medicinal marijuana statute. See id. ¶¶ 11, 13. Members of WAMM assist in cultivating marijuana plants to the extent of their physical abilities; they do not purchase, sell, or otherwise distribute marijuana. See id. ¶¶ 11, 13, 20. WAMM also provides community support to seriously ill and dying patients through weekly meetings and other forms of outreach. See id. ¶ 12. WAMM is supported by voluntary contributions, and its members are not charged for their use of marijuana. See id. ¶ 20.

  Plaintiff Valerie Corral, the executive director of WAMM, and her husband Michael Corral, her primary caregiver, founded the organization in 1993. See id. ¶ 10. The Corrals reside on a farm in Davenport, California, where they have permitted members of WAMM to cultivate marijuana plants for medicinal use. See id. Valerie Corral and Plaintiffs Eladio V. Acosta, James Daniel Baehr, Michael Cheslosky, Jennifer Lee Hentz, Dorothy Gibbs, and Harold F. Margolin (collectively "the Patient-Plaintiffs") have used medicinal marijuana on the recommendation of their respective physicians to alleviate pain and suffering caused by their illnesses and to treat certain other symptoms.

  The Controlled Substances Act ("CSA"), 21 U.S.C. § 801, et seq., provides that "[e]xcept as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." 21 U.S.C. § 841(a)(1).*fn2 California's medicinal marijuana statute, the Compassionate Use Act of 1996, was enacted by California voters on November 5, 1996, when they passed Proposition 215. See Cal. Health & Safety Code § 11362.5. The statute creates an exemption from state laws that prohibit the cultivation and use of marijuana: it permits patients and their primary caregivers to possess and cultivate marijuana for personal medicinal use upon a physician's recommendation or approval. Id. § 11362.5(d). Additionally, the California legislature has enacted a provision creating exemptions for qualified patients and their designated primary caregivers "who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes." Id. § 11362.775. There is no dispute that the activities of WAMM and the Patient-Plaintiffs, each of whose primary caregiver also is a WAMM member, are legal under the statute.

  Prior to passage of Proposition 215, Plaintiff County of Santa Cruz ("the County") had adopted an ordinance directing County officials to use their authority to support the availability of marijuana for medicinal use. See Santa Cruz County Code Ch. 7.122.020-7.1222.060. Following enactment of the Compassionate Use Act of 1996, Plaintiff City of Santa Cruz ("the City") enacted additional legislation to facilitate implementation of the statute. See Santa Cruz Municipal Code Ch. 6.90.010, et seq. Among other things, the City's medicinal marijuana ordinance authorizes the City to deputize individuals and organizations as medicinal marijuana providers to assist the City in implementing the statute. Id. Ch. 6.90.040(1).

  On September 5, 2002, between twenty and thirty armed agents led by officers of the federal Drug Enforcement Administration ("DBA") arrived at the Corrals' property to execute a search warrant. See Corral PI Decl., ¶ 27. The DBA agents forcibly entered the premises, pointed loaded firearms at the Corrals, forced them to the ground, and handcuffed them. See id. The Corrals subsequently were transported to the federal courthouse in San Jose, where they were released without being charged. See id. ¶¶ 27, 28. DBA agents remained on the premises for eight hours, seizing 167 marijuana plants, many of the WAMM members' weekly allotments of medicinal marijuana, various documents and records, and other items. See id. ¶ 28.

  Less than two weeks after the DEA's September 5, 2002 raid, the County's Board of Supervisors adopted a resolution condemning the raid and urging the federal government not to indict the Corrals for their activities. See Declaration of Ellen Pirie . . . in Support of Plaintiffs' Motion for Preliminary Injunction ("Pirie Decl."), Ex. B. On September 17, 2002, the City permitted WAMM members to receive their weekly allotments of medicinal marijuana at the Santa Cruz City Hall. See Corral PI Decl., ¶ 33; Declaration of Emily Reilly . . . in Support of Plaintiffs' Motion for Preliminary Injunction ("Reilly Decl."), ¶ 5. The City Council subsequently adopted a resolution deputizing WAMM and the Corrals to function as City-authorized medicinal marijuana providers pursuant to the City's medicinal marijuana ordinance. See Reilly Decl., Ex. A.

  On September 24, 2002, WAMM and the Corrals filed a related action against the federal government in this Court seeking return of the marijuana plants and other property seized in the September 5, 2002 raid pursuant to Federal Rule of Criminal Procedure 41(e). See Wo/Men's Alliance for Medical Marijuana, et al. v. United States, No. 02-MC-7012 JF (N.D. Cal. filed Sept. 24, 2002) ("the related action").*fn3 The movants argued that their conduct did not affect interstate commerce and that application of the CSA to such conduct thus constituted an unlawful exercise of Congressional powers under the Commerce Clause. This Court concluded, however, that disposition of the movants' motion was controlled by Ninth Circuit precedent that precluded the relief sought. Accordingly, the Court denied the motion for return of property by order issued December 3, 2002. See Wo/Men's Alliance for Med. Marijuana v. United States, No. 02-MC-7012 JF, 2002 U.S. Dist. LEXIS 26389 (N.D. Cal. Dec. 3, 2002). That decision has been appealed to the United States Court of Appeals for the Ninth Circuit, and oral argument took place in September 2003.

  On April 23, 2003, Plaintiffs filed the instant action against Defendants John Ashcroft, Attorney General of the United States; Karen P. Tandy, Administrator of the DEA*fn4; John P. Walters, Director of the Office of National Drug Control Policy; and 30 Unknown DEA Agents, seeking to enjoin alleged violations of their constitutional rights. They assert the following claims: (1) deprivation of fundamental rights under the Fifth and Ninth Amendments to alleviate pain and suffering and to control the circumstances of one's own death; (2) deprivation of the fundamental right to follow the recommendations of one's physician; (3) unlawful exercise of Congressional powers under the Commerce Clause; and (4) violation of the Tenth Amendment. Plaintiffs also seek a declaration that WAMM and Valerie Corral are immune from civil and criminal liability under the CSA for their activities, as well as damages for Defendants' alleged violations of their constitutional rights. Only the third claim is at issue in the present motion.

  II. ...


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