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.
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.