revised andshortened edited suit

James XXXXXXX v. Kathleen Micks et. Al.

Complaint for Damages

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In Proper Persona XXXXXXXXX

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF DEL NORTE COUNTY

XXXXXXXXXX ) No. ))

Plaintiff, )) COMPLAINT FOR DAMAGES) DECLARATORY RELIEF

) PRELIMINARY INJUNCTIONv. ) & PERMANENT INJUNCTION;

) ) DEMAND FOR JURY TRIAL

Acting District Attorney Kathleen Micks )& Del Norte Sheriffs deputies John Does #1-20, )Defendants ) Date:

) Time:__________________________________________) Place:

TO THE CLERK OF THE ABOVE-ENTITLED COURT; THE DISTRICT ATTORNEY FOR THE COUNTY OF DEL NORTE COUNTY; AND THE DEL NORTE SHERIFF”S OFFICE

I. INTRODUCTION.

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1. This is a civil rights action for declaratory and injunctive relief, and damages arising out of an

unconstitutional policy and practice effectuated by the County of Del Norte to seize and destroy

medical cannabis lawfully possessed under the laws of the State of California without prior

notice and a hearing, in violation of due process. Plaintiff XXXXXX is qualified medical

cannabis patient to use cannabis to treat symptoms associated with PTSS, extreme anxiety,

migraines, fibromyalgia, arthritis, high blood pressure, and depression. The County of Del Norte,

the Office of the Sheriff and DOES 1-20 seized his medical marijuana and are withholding it

from him without notice or a hearing. This action and policy violates XXXXX’ rights under the

First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution and Article I,

Sections 7 and 19 of the California Constitution.

2. In the general election of November 4, 1996, fifty-seven percent of the California

electorate approved a ballot measure enacting Proposition 215 (“Proposition 215” or “the

Compassionate Use Act”). In so doing, the California voters established that “seriously ill

Californians have the right to obtain and use marijuana for medical purposes where that medical

use is deemed appropriate and has been recommended by a physician who has determined that

the person’s health would benefit from the use of marijuana. . . .” Cal. Health & Safety Code §

11362.5(b)(1)(A).

3. Where property has been confiscated by law enforcement without probable cause to believe

that a crime has been committed, the California Legislature has established “special

proceedings” for its expeditious return. See Penal Code § 1538.5 et seq.; Avelar v. Superior

Court, 7 Cal.App.4th 1270, 1276 (1992). Recognizing the important due process and property

interests at stake, California has established that once a court finds probable cause lacking, it

must return seized property to its rightful owner. See Stern v. Superior Court, 76 Cal.App.2d

772, 784 (1946).

4. Notwithstanding these important statutory and constitutional rights, the County of Del Norte

and its employees seized the medical marijuana it confiscated from XXXXX after he had given

them clear notice that he was interested in seeking its return.

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II. JURISDICTION AND VENUE

5. Plaintiff brings this action to redress the deprivation of rights secured to him by the Fourth,

Fifth and Fourteenth Amendments to the Untied States Constitution and Article I, Sections 7 and

19 of the California Constitution.

6. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1343, and 42

U.S.C. § 1983. Plaintiff also invokes supplemental jurisdiction of this Court over his state claims

against defendants pursuant to 28 U.S.C. § 1367, as the state constitutional claims form part of

the same case or controversy.

7. Venue is proper is this judicial district under 28 U.S.C. § 1391 because the events

giving rise to the complaint occurred in the County of Contra Costa, which is in this judicial

district.

III. THE PARTIES

A. Plaintiff

8. Plaintiff XXXXXX is, and at all times mentioned herein, was a resident of the County of

Humboldt in the State of California and a qualified medical marijuana patient under California

law.

B. Defendants

9. Defendant COUNTY OF DEL NORTE is, and at all times mentioned herein was, a municipal

corporation within the State of California. Defendant Del Norte operates and governs the Office

of the Sheriff, Del Norte County pursuant to the laws of State of California.

10. Defendant OFFICE OF THE SHERIFF, DEL NORTECOUNTY (“Del Norte Sheriff’s

Office”) is, and at all times mentioned herein was, a department within the State of California,

which is owned and operated by it.

11. Plaintiff is ignorant of the true names of defendants sued herein as DOES 1 through 20,

inclusive, and therefore sues said defendants by such fictitious names. Plaintiff will amend this

complaint to allege their true names and capacities when ascertained. Plaintiff is informed and

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believes and therefore alleges that each of the Doe defendants is legally responsible and liable

for the injuries and damages hereinafter set forth, and that each of said defendants proximately

caused said injuries and damages by reason of their violation of constitutional and legal rights.

Plaintiff will ask leave to amend this complaint to insert further charging allegations when such

facts are ascertained.

12. Each of the defendants, including defendants DOES 1 through 20, caused and is responsible

for the below-described unlawful conduct and resulting injuries by, among other things,

personally participating in the unlawful conduct or acting jointly or conspiring with others who

did so; by authorizing, acquiescing in or setting in motion policies, plans or actions that led to the

unlawful conduct; by failing to take action to prevent the unlawful conduct; by failing and

refusing with deliberate indifference to plaintiff’s rights to initiate and maintain adequate training

and supervision; and by ratifying the unlawful conduct that occurred by agents and officers under

their direction and control, including failing to take remedial or disciplinary action.

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13. In doing the acts alleged herein, defendants and each of them, including defendants DOES 1

through 20, were acting within the scope and course of their employment with the County of Del

Norte and the Del Norte Sheriff’s Office.

14. At the time of the incident, and at all times pertinent hereto, defendants, including DOES 1

through 20, acted under color of law, of a statute, ordinance, regulation, custom, or usage.

IV. FACTS

15. On November 4, 1996, California voters passed Proposition 215, which is codified as the

Compassionate Use Act at California Health & Safety Code § 11362.5 (“the Compassionate Use

Act”), to “ensure that seriously ill Californians have the right to obtain and use marijuana for

medical purposes” without criminal penalty. See Cal. Health & Safety Code § 11362.5(b)(1).

16. Pursuant to this law, Plaintiff XXXXXX obtained a written recommendation from his

physician to treat symptoms associated with migraines, high blood pressure, strokes, &

fibromyalgia. This makes him a “qualified medical marijuana patient” under California law. See

Cal. Health & Safety Code § 11362.5.

17. As a qualified patient, XXXXXXX had the right under California law to cultivate

marijuana or his personal medical use.

18. Despite the legality of his conduct under California law, the Del Norte Sheriff’s Office

unconstitutionally and unlawfully pulled XXXXXXX over during and illicit traffic stop and

seized his medical marijuana and apparatus on March 18, 2013. Officer Donaldson had parked

his patrol vehicle in the Elk Valley Rancheria parking lot in a position to watch vehicles as the

drove by on Howland Hill Rd. & Humboldt Rd. The officer seen XXXXXXX drive by and

immediately pulled out and accelerated to catch up with him. He then pulled XXXXXXX over

without any justification, as he was not speeding or swerving, the vehicle was in good condition,

no taillights were out, no headlights were out, the registration was current and the registration

tags were properly displayed.

19. XXXXXXX showed Donaldson his I.D. and papers for the car. Donaldson asked why

XXXXXXX was out late at night. XXXXXXX asked Donaldson if he had done anything wrong,

if he was being detained, and if he was free to leave. Donaldson said he stopped XXXXXXX

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because he was on the lookout for a stolen black Lexus. XXXXXXX was driving a 93 brown

Ford Contour. Donaldson observed a roll of aluminum wire in the backseat of XXXXXXX’

vehicle. Donaldson asked if the wire was stolen. XXXXXXX replied ‘no’. Donaldson informed

XXXXXXX that Donaldson was going to search the vehicle. XXXXXXX stated he was not

going to submit to a search or seizure. Donaldson then requested for backup.

20. Donaldson then placed XXXXXXX in the back of his patrol vehicle and had

XXXXXXX’ wife Patty placed in the back of the other officers’ vehicle & then ensued searching

XXXXXXX vehicle. XXXXXXX informed Donaldson that both XXXXXXX & Patty had

current 215 cards and had multiple medical causes to necessitate its medical use.

21. Donaldson found cannabis, and apparatus to use the cannabis. Donaldson informed

XXXXXXX that he was seizing all cannabis related items ad that XXXXXXX was being

handcuffed & arrested for felony cannabis charges.

22. Officer Donaldson informed XXXXXXX that “marijuana was still illegal under federal law,

and that was the authority under which (he) was acting.” He then informed XXXXXXX that the

seized property was to be held for evidence, and then it would be eventually destroyed.

23. Soon thereafter, on March 18, 2013, XXXXXXX filed a motion for dismissal.

24. After no charges were filed against XXXXXXX and he was informed by the D.A.’s

office that no charges would be filed, XXXXXXX filed a motion for return of property on or

about April 25th, 2013 and multiple times afterwards. The Court clerk refused to accept these

motions several times without explanation.

25. A Government tort claim was served on the County Board of Supervisors in April, 2013,

and again in May 2014 when charges were filed by the D.A. and the Tort claim was rejected by

the County.

26. On July 13, the D.A. pressed charges against XXXXXXX.

27. The D.A. and the sheriff’s dept. delayed 7 months before providing the police video of

the incident. Once this time had elapsed, Kathleen Micks advised XXXXXXX attorney, Dale

Trigg that she would drop the charges if XXXXXXX promised not to sue her. XXXXXXX

attorney, Dale Trigg advised XXXXXXX of this. XXXXXXX requested not to waive time and

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wished to push forward with the trial. At this point, Kathleen Micks decided to drop the felony

charges against XXXXXXX.

28. On or around February 5th, 2014, XXXXXXX requested his property back from the

property/evidence officer at the Del Norte Sheriff’s dept. as they no longer needed it as evidence

in an ongoing criminal matter. XXXXXXX was informed by the on duty sergeant that it was the

sergeant’s opinion XXXXXXX should have been convicted for a crime and the property would

not be given back, but destroyed.

29. Each and every time XXXXXXX has traveled to Crescent City for court, he has been

stopped, harassed, searched, and threatened by either the Crescent City police Dept or the

Sheriff’s dept. and has probable cause his life may be in jeopardy by the hands of these officers

in the future.

V. CAUSES OF ACTION

FIRST CAUSE OF ACTION--VIOLATION OF DUE PROCESS

Violation of the Fourteenth Amendment to the United States Constitution

(42 U.S.C. § 1983)

(AGAINST ALL DEFENDANTS)

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30. Plaintiff realleges and incorporates by reference paragraphs 1 through 23 of this

complaint as though fully set forth herein.

31. Defendants’ seizure and/or destruction of XXXXXXX’s property without prior notice or

hearing violated his right not to be deprived of property or liberty without due process of law

under the Fourteenth Amendment to the United States Constitution.

32. It was the policy and practice of the County of Del Norte and the Del Norte Sheriff’s

Office to authorize their officers to seize and destroy medical marijuana without prior notice and

hearing. This policy and practice was either explicit, tolerated or ratified by these defendants.

This policy and practice encouraged and caused the constitutional violations complained of

herein.

33. At all times pertinent hereto, the supervisors who supervised the defendant officers who

unlawfully violated XXXXXXX’s constitutional rights encouraged and tolerated the policies and

practices described herein.

34. The Plaintiff believes the acting district attorney was using her office as a shield to

protect the Sheriffs policies and to punish XXXXXXX for attempting to file a complaint.

35. Defendants County of Del Norte and the Del Norte Sheriff’s Office refused adequately

to train, direct, supervise, or control the individual defendant officers so as to prevent the

violation of plaintiff’s constitutional rights.

36. At all times pertinent hereto, the individual defendant officers were acting within the

scope of their employment and pursuant to the aforementioned policies and practices of the

County of Del Norte and the Del Norte Sheriff’s Office. These policies and practices were

enforced by defendants County of Del Norte, the Del Norte Sheriff’s Office, and their employee

supervisors and were the moving force, proximate cause, or affirmative link behind the conduct

causing plaintiff’s injury. These defendants are therefore liable for the violation of plaintiff’s

constitutional rights by the individual defendant officers.

SECOND CAUSE OF ACTION--DUE PROCESS

Violation of California Constitution, Article I, § 7(a)

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38. Defendants’ above-described conduct violated Plaintiff’s right not to be deprived of

property or liberty without due process of law under article I, section 7(a) of the California

Constitution.

THIRD CAUSE OF ACTION--TAKINGS/INVERSE CONDEMNATION

Violation of the Fifth and Fourteenth Amendments to the United States Constitution(42 U.S.C. § 1983)




40. At all times mentioned herein, plaintiff was the legal owner of the medical marijuana and

medical apparatus when it was confiscated and destroyed by the defendants.

41. Defendants took plaintiff’s medical marijuana and apparatus without a legitimate public

health or safety interest.

42. Plaintiff received no monetary compensation for the damage to his property. In doing

the aforesaid acts, defendants violated plaintiff’s right to just compensation for property taken or

damaged for public use without a legitimate public health or safety interest under the Fifth and

Fourteenth Amendments to the United States Constitution.

FOURTH CAUSE OF ACTION--TAKINGS/INVERSE CONDEMNATIONViolation of California Constitution, Article I, Section 19




44. At all times mentioned herein, plaintiff was the legal owner of the medical marijuana and

medical apparatus when it was confiscated and destroyed by the defendants.

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45. Defendants took plaintiff’s medical marijuana and medical apparatus without a

legitimate public health or safety interest. In doing so, the officer committed a crime.

46. Plaintiff received no monetary compensation for the damage to his property. In doing the

aforesaid acts, defendants violated plaintiff’s right to just compensation for property taken or

damaged for public use without a legitimate public health or safety interest under article I,

section 19 of the California Constitution.

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FIFTH CAUSE OF ACTION--CONSPIRACY TO VIOLATE CIVIL RIGHTS

(42 U.S.C. §§ 1983 and 1985)

(AGAINST DOES 1-20)



48. The individual defendant officers conspired to violate plaintiff’s statutory civil rights by

acting in concert to seize and destroy his medical marijuana and medical apparatus, as more fully

described in the preceding paragraphs, all in violation of 42 U.S.C. §§ 1983 and 1985, for which

the individual defendant officers are individually liable.

49. XXXXXXX's supporting documents showing his purported entitlement to medical

marijuana all pre-date the March, 18, 2013 seizure.

50. A medical recommendation was presented to the trial court showing that on March 18,

2013, XXXXXXX was entitled to possess medical marijuana. (People v. Rigo (1999) 69

Cal.App.4th 409, 412-413).

51. The fact that no criminal charges were timely filed by the district attorney shows a

prevalent scheme in Del Norte County to violate citizens civil rights at whim and a penchant for

indiscriminant property seizure.

52. The question thus reduces to whether this trial court is compelled to find under state law

that XXXXXXX lawfully possessed the marijuana at issue and then has no option other than to

order its return. Trial courts like to refer to the continuing prohibition of marijuana possession

under federal law as a basis for its ruling. But the State of California does not rely on this

rationale in defending the court's ruling, and instead acknowledges that-both generally and in the

specific context of interpreting the Compassionate Use Act-it is not the province of state courts

to enforce federal laws. (See People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1445-

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1446). State courts have an obligation under the California Constitution to follow only state, not

federal, law (People v. Maravilla). This is a direct quote for the California Attorney General’s

Office. For years, local officials have tried to use federal law as a reason to deny patients their

legal rights, but the July 2008 landmark decision in the San Diego case made clear that federal

law does not preempt the state's medical marijuana law. After the landmark appellate court

decision, both the California Supreme Court (in October 2008) and the U.S. Supreme Court (in

May 2009) refused to hear the case brought by San Diego County.

53. In addition, the U.S. Government contradicts its own policy with the U.S. Patent

#6,630,507. The patent abstract is as follows:

Cannabinoids have been found to have antioxidant properties, unrelated to NMDA receptor antagonism. This new found property makes cannabinoids useful in the treatment and prophylaxis of wide variety of oxidation associated diseases, such as ischemic, age-related, inflammatory and autoimmune diseases. The cannabinoids are found to have particular application as neuroprotectants, for example in limiting neurological damage following ischemic insults, such as stroke and trauma, or in the treatment of neurodegenerative diseases, such as Alzheimer's disease, Parkinson's disease and HIV dementia. Nonpsychoactive cannabinoids, such as cannabidoil, are particularly advantageous to use because they avoid toxicity that is encountered with psychoactive cannabinoids at high doses useful in the method of the present invention. A particular disclosed class of cannabinoids useful as neuroprotective antioxidants is formula (I) wherein the R group is independently selected from the group consisting of H, CH.sub.3, and COCH.sub.3. ##STR1##

This U.S. Patent claims that a method of treating dementia, Down’s syndrome, heart disease,

disease in the central nervous system of a subject, diseases caused by oxidative stress

[“Oxidative associated diseases include, without limitation, free radical associated diseases, such

as ischemia, ischemic reperfusion injury, inflammatory diseases, systemic lupus erythematosis,

myocardial ischemia or infarction, cerebrovascular accidents (such as thromboembolic or

hermorrhagic stroke) that can lead to ischemia or an infarct in the brain, operative ischemia,

traumatic hemorrhage (for example a hypovolemic stroke that can lead to CNS hypoxia or

anoxia), spinal cord trauma, Crohn’s disease, autoimmune diseases (e.g., rheumatoid arthritis or

diabetes), cataract formation, uveitis, emphysema, gastric ulcers, oxygen toxicity, and neoplasia

(cancer tumors).”], ischemic or neurodegenerative disease or wherein the ischemic or

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neurodegenerative disease is an ischemic infarct, Alzheimer’s disease, Parkinson’s disease, and

human immunodeficiency virus, comprising administering a therapeutically effective amount

of a cannabinoid to a subject will cure the patient.

54. In 1988--after reviewing all evidence brought forth in a lawsuit against the government's

prohibition of medical marijuana--the DEA's own administrative law judge (Judge Francis

Young) wrote:

"The evidence in this record clearly shows that marijuana has been accepted as capable of relieving the distress of great numbers of very ill people, and doing so with safety under medical supervision. It would be unreasonable, arbitrary and capricious for the Drug Enforcement Administration to continue to stand between those sufferers and the benefits of this substance in light of the evidence." Judge Francis Young of the Drug Enforcement Administration went on to say: "Marijuana, in its natural form, is one of the safest therapeutically active substances known. In strict medical terms, marijuana is safer than many foods we commonly consume."Judge Young recommended that the DEA allow marijuana to be prescribed as medicine, but the DEA has refused. -Source: US Department of Justice, Drug Enforcement Administration, "In the Matter of Marijuana Rescheduling Petition," [Docket #86-22], (September 6, 1988), p. 57

1. MEMORANDUM OF POINTS AND AUTHORITIES

UNLAWFUL DETENTION, ARREST AND SUBSEQUENT PROSECUTION

55. 42 U.S.C. § 1983, provides:Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.56. Delaware v Prouse, 1979 determined a citizen cannot be detained without suspicion of

criminal activity.

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57. Brown v Texas, 1979 found a peace officer cannot demand ID without reasonable

suspicion.

58. Terry v. Ohio (1968) decided law enforcement officers are permitted to conduct a limited

warrantless search on a level of suspicion less than probable cause under certain circumstances.

In Terry, the Supreme Court ruled that when a police officer witnesses "unusual conduct" that

leads that officer to reasonably believe "that criminal activity may be afoot", the officer must be

able to point to specific and articulable facts which, taken together with rational inferences from

those facts, reasonably warrant their actions. As established in Florida v. Royer (1983), such a

search must be temporary, and questioning must be limited to the purpose of the stop (e.g.,

officers who stop a person because they have reasonable suspicion to believe that the person was

driving a stolen car, cannot, after confirming that it is not stolen, compel the person to answer

questions about anything else, such as the possession of contraband).

59. Undoubtedly the right of locomotion, the right to remove from one place to another

according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit

from or through the territory of any state is a right secured by the Fourteenth Amendment and by

other provisions of the Constitution. The liberty of which the deprivation without due process of

law is forbidden. This"means not only the right of the citizen to be free from the mere physical restraint of his

person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, …" Allgeyer v. Louisiana - 165 U.S. 578 (1897), 165 U. S. 591; Holden v. Hardy, 169 U. S. 366.

60. Policing-for-profit is nothing new. But it is a crime. “Whoever in any way or degree obstructs, delays, or affects commerce or the movement

of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both. (b) As used in this section - (1) The term "robbery" means the unlawful taking or obtaining of personal property from the person or in the presence of

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another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. (2) The term "extortion" means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. (3) The term "commerce" means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.” 18 U.S.C. Section 1951

2. THE COMPASSIONATE USE ACT ENTITLES JAMES XXXXXXX TO POSSESS

THE MEDICAL MARIJUANA AT ISSUE

61. An entitlement is a guarantee of access to something, such as to welfare benefits, based

on established rights or by legislation. A "right" is itself an entitlement associated with a moral

or social principle, such that an "entitlement" is a provision made in accordance with a legal

framework of a society. Typically, entitlements are based on concepts of principle ("rights")

which are themselves based in concepts of social equality or enfranchisement.

62. The Compassionate Use Act expressly “ensure[s] that seriously ill Californians have the

right to obtain and use marijuana for medical purposes where that medical use is deemed

appropriate and has been recommended by a physician. . . .” (Cal. Health & Safety Code §

11362.5, subd. (b)(1).) Where a qualified patient establishes his entitlement to possess the

medical marijuana at issue, which requires a “written or oral recommendation or approval of a

physician” to use marijuana medicinally and a quantity of marijuana that is no more than is

reasonably related to his current medical needs (See Health & Saf. Code § 11362.5, subd. (d);

People v. Jones (2003) 112 Cal.App.4th 341, 347, 4 Cal.Rptr.3d 916, 920; People v. Trippett

(1997) 56 Cal.App.4th 1532, 1550-51, 66 Cal.Rptr.2d 559), there is no probable cause to believe

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http://en.wikipedia.org/wiki/Enfranchisement

http://en.wikipedia.org/wiki/Social_equality

http://en.wikipedia.org/wiki/Principle

http://en.wikipedia.org/wiki/Law

http://en.wikipedia.org/wiki/Law

http://en.wikipedia.org/wiki/Provision

http://en.wikipedia.org/wiki/Principle

http://en.wikipedia.org/wiki/Legislation

http://en.wikipedia.org/wiki/Rights

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that a crime has been committed. (See Penal Code § 1538.5(a)(1)(A) [authorizing return of

property seized without a warrant where the search or seizure was unreasonable]; Penal Code §

1538.5(a)(1)(B)(ii) & (iii) [authorizing return of property seized pursuant to warrant where

property is not that described in warrant or there is no probable cause]). Under these

circumstances, he is entitled to the return of his medical marijuana. (See Garden Grove, supra.)

63. James XXXXXXX has presented proof of his entitlement to possess marijuana for

medical use pursuant to the Compassionate Use Act by showing that he is a qualified patient.

Attached hereto is: (1) a doctor’s recommendation for medical marijuana use issued to the

movant by Dr. Caplan; and (2) a medical marijuana photo ID card qualifying him under CA

Health and Safety Code section 11362.5. His quantity of cannabis is no more than is necessary

for his personal medical needs. Even so, on May 22, 2008, California’s Second District Court of

Appeal severed Health & Safety Code § 11362.77 from the MMP on the ground that the statute’s

possession guidelines were an unconstitutional amendment of Proposition 215, which does not

quantify the marijuana a patient may possess. (See People v. Kelly (2008) 163 Cal.App.4th 124,

77 Cal.Rptr.3d 390.) The Third District Court of Appeal recently reached a similar conclusion in

People v. Phomphakdy (July 31, 2008) --- Cal.Rptr.3d ---, 2008 WL 2931369. The California

Supreme Court has granted review in Kelly and the Attorney General intends to seek review in

Phomphakdy. (See People v. Wright (2006) 40 Cal.4th 81, 92 [holding that a qualified patient

may possess at least eight ounces of dried marijuana ]).

64. Marijuana is defined as "… all parts of the plant Cannabis sativa L., whether growing or

not; the seeds thereof; the resin extracted from any part of the plant; and every compound,

manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or its resin. It does

not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from

the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation

of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized

seed of the plant which is incapable of germination" (H&SC 11018).] California’s Attorney

General Bill Lockyer agrees. Concentrated cannabis, hashish (11357aH&S) is included in the

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medical marijuana laws per the published opinion of the California Attorney General's office.

He stated “Concentrated cannabis or hashish is included within the meaning of “marijuana” as

that term is used in the Compassionate Use Act of 1996. SB 420 includes all the sections of

11357 H&S.” SB420 Section 11362.765 H&S states that qualified patients (with or without ID

cards), designated primary caregivers, or any individual who provides assistance to a qualified

patient or a person with an ID card, or his or her designated primary caregiver, shall not be

subject to criminal liability on that basis alone under the following sections of the Health &

Safety Code:11357 [possession],

11358 [cultivation],

11359 [possession for sale],

11360 [processing, transportation, distribution, importation and sales],

11366 [maintaining a place for selling, giving or using],

11366.5 [management of location for manufacture or storage], or

11570 [having a place used for the purpose of unlawfully selling, serving, storing, keeping,

manufacturing, or giving away any controlled substance].

65. The most recent edition of the Judicial Councils Jury Instructions (Cal. Crim. 2377)

requires judges to tell juries that cannabis concentrates are protected. This rule follows an

opinion of the California Attorney General. (86 Ops.Cal.Atty.Gen. 180, 194)

3. STATE RULE VS FEDERAL PREEMPTION

66. The Supreme Court declined to review a lower court decision that ordered Garden

Grove, California, police to return marijuana seized from a medical marijuana patient. In

November 2007, the California Fourth District Court of Appeal had ordered the marijuana

returned, finding that "it is not the job of local police to enforce federal drug laws."

The decision was written as follows:

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"Congress enacted the CSA to combat recreational drug abuse and curb drug trafficking.

Gonzales v. Oregon, supra, 546 U.S. at p. 271; Gonzales v. Raich, supra, 545 U.S. at pp. 10-13.)

Its goal was not to regulate the practice of medicine, a task that falls within the traditional powers

of the states. (Gonzales v. Oregon, supra, 546 U.S. at p. 269.) Speaking for the majority in

Gonzales v. Oregon, Justice Kennedy explained, "The [CSA] and our case law amply support the

conclusion that Congress regulates medical practice insofar as it bars doctors from using their

prescription-writing powers as a means to engage in illicit drug dealing and trafficking as

conventionally understood. Beyond this, however, the statute manifests no intent to regulate the

practice of medicine generally." (Ibid.)"

67. A State can pass and enforce a law that is in opposition to a federal law. The Supremacy

Clause is often interpreted to say that federal law is supreme over State law, & that the States

cannot pick and choose which laws they choose to honor. But, the Supremacy Clause in Article

Six, Clause Two states: “This Constitution, and the Laws of the United States which shall be

made in Pursuance thereof … shall be the supreme Law of the land.” “Thereof” refers to the

Constitution. Laws are to be made in pursuance to the Constitution. “Shall be made in

Pursuance” thereof means following or in keeping with. Thus only those laws that are in

keeping with the Constitution are the supreme law of the land. And, those not in keeping with

the Constitution are not valid laws. In order for them to be constitutional and enforceable they

must be found in the list of allowable and enumerated laws. A federal law trump state law only

when the federal law is constitutional, when it is found in the enumerated powers.

68. The DEA classifies marijuana as a dangerous drug with no medical value. That

classification contradicts U.S. Patent # 6630507 (filed by President Clinton in April 29, 1999)

showing marijuana to be a very safe, inexpensive and effective medicine, more so than many

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drugs currently used in its place. The “Assignee” on the patent is the United States of America.

The ultimate owners of this patent are the American people who are its citizens, who fund the

government with their taxes, and are represented by it, and who in effect employ it to act as our

agent protecting our welfare. A government cannot create laws to benefit itself at the peril of its

citizens.

69. Despite this, last March, the U.S. government’s forced the National Cancer Institute to

scrub its newly created cannabis web section to delete the phrase:

“In the practice of integrative oncology, the health care provider may recommend medical

cannabis not only for symptom management but also for its possible direct anti-tumor effect.”

This is after receiving a patent specifically on the point that cannabinoids are powerful anti-

oxidative medicines that fight oxidative stress diseases. One of the main causes of cancer is

oxidative stress disease.

70. The government’s public mantra has always been that marijuana is not a medicine in any

form, as in Schedule I, which means (a) the drug or other substance has a high potential for

abuse; (b) it has no currently accepted medical use in treatment in the United States (Refer to

U.S. Patent 6,630,507 B1); and (c) there is a lack of accepted safety for use of the drug or other

substance under medical supervision.

71. The California Medical Association serves more than 35,000 members in all modes of

practice and specialties representing the patients of California. The CMA was founded in 1856

by a small group of physicians who took it as their duty to fight for their patients and for their

profession and so they formed the Medical Society of the State of California “to develop, in the

highest possible degree, the scientific truths embodied in the profession.” The California

Medical Association has adopted official policy that recommends legalization and regulation of

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cannabis. ..”They have chosen to adopt this forward thinking, medically sound policy that will

only further their ability to properly treat patients,” according to Dustin Corcoran, CMA Chief

Executive Officer.

72. The California Police Chiefs Association opposes the CMA’s new policy as does most of

the law enforcement hierarchy. But Bill Piper, the director of national affairs for the Drug Policy

Alliance, said that marijuana policy should not be solely in the hands of the government. “Drug

use is a health issue and for too long we have let law enforcement and federal bureaucrats decide

policy. CMA is saying let’s treat medical marijuana as a health issue,”

73. In a memorandum known as the "Ogden Memorandum" sent out to the top federal

prosecutors in the states that allow some form of medical marijuana, the Department of Justice

stated the following:

"As a general matter, [federal prosecutors] should not focus federal resources in your States on

individuals whose actions are in clear and unambiguous compliance with existing state laws

providing for the medical use of marijuana. For example, prosecution of individuals with cancer

or other serious illnesses who use marijuana as part of a recommended treatment regimen

consistent with applicable state law, or those caregivers in clear and unambiguous compliance

with existing state law who provide such individuals with marijuana, is unlikely to be an efficient

use of limited federal resources."

74. Gonzales v. Oregon, 546 U.S. 243 (2006), was a decision by the United States Supreme

Court, which ruled that the United States Attorney General could not enforce the federal

Controlled Substances Act against physicians who prescribed drugs in compliance with State

law.

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75. The new administration's promise to stop undermining state medical marijuana laws

should have ended a controversial period in U.S. history. This controversy has not been rooted in

the question of legal supremacy; the U.S. Supreme Court has reminded us that state law may

indeed diverge from federal law in our federalist system. Rather, the controversy has stemmed

from the federal government's repeated attempts to strong-arm states into recriminalizing

medical marijuana. Since 1996, 13 states have legalized medical marijuana, pulling their state

marijuana laws out of alignment with the federal government's. Although medical marijuana is

legal in the states' view, it remains illegal in the feds' view. According to the Supreme Court, this

is a completely acceptable arrangement.

76. The scope of federal power was intended to be rather limited. States are plenary

sovereigns, while the federal sovereign possesses only the limited authority outlined in the

Constitution. In the beginning, federal law traditionally focused on areas where there was an

express grant of power to the federal government in the federal Constitution, like the military,

money, foreign affairs, international treaties, tariffs, intellectual property, and mail. Since the

start of the 20th century, aggressive interpretations of the Commerce and Spending Clauses of

the Constitution have enabled federal law to expand into areas like aviation, telecommunications,

railroads, pharmaceuticals, antitrust, and trademarks.

77. Under the doctrine of Erie Railroad Co. v. Tompkins (1938), there is no general federal

common law. Although federal courts can create federal common law in the form of case law,

such law must be linked one way or another to the interpretation of a particular federal

constitutional provision, statute, or regulation (which in turn was enacted as part of the

Constitution or after). Federal courts lack the plenary power possessed by state courts to simply

make up law, which the latter are able to do in the absence of constitutional or statutory

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provisions replacing the common law. Only in a few narrow limited areas, like maritime law, has

the Constitution expressly authorized the federal courts to make law as they see fit.

Another implication of the Erie doctrine is that federal courts cannot dictate the content of state

law when there is no federal issue in a case. When hearing claims under state law pursuant to

diversity jurisdiction, federal trial courts must apply the statutory and decisional law of the state

in which they sit, as if they were a court of that state, even if they believe that the relevant state

law is irrational or just bad public policy. And under Erie, deference is one-way only: state courts

are not bound by federal interpretations of state law.

78. However, since precedents became binding, it is now sometimes possible, over time, for

a line of them to drift away from the express language of any underlying statutory or

constitutional texts, until such texts are severely overloaded with implied meanings not even

hinted at on their face. This tendency towards so-called judicial lawmaking has been particularly

obvious in federal substantive due process decisions. Due to obvious tension with the reservation

of legislative power to Congress in Article One of the United States Constitution, it is often

subject to harsh criticism as "antidemocratic" from originalists such as Associate Justice Antonin

Scalia, as in this 2000 dissenting opinion:

“ In imposing its Court-made code upon the States, the original opinion at least asserted

that it was demanded by the Constitution. Today’s decision does not pretend that it is–and yet

still asserts the right to impose it against the will of the people’s representatives in Congress. Far

from believing that stare decisis compels this result, I believe we cannot allow to remain on the

books even a celebrated decision–especially a celebrated decision–that has come to stand for the

proposition that the Supreme Court has power to impose extraconstitutional constraints upon

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Congress and the States. This is not the system that was established by the Framers, or that

would be established by any sane supporter of government by the people.”

There is no federal issue in this matter.

VI. The Criminalization of Cannabis

79. Why and how did cannabis get classified as a Controlled Substance? It is perceived as

addictive, having "no accepted medical use," & been historically linked with narcotics, such as

heroin. It was once associated with oppressed ethnic groups and unfashionable lifestyles. And

the inertia of the war on drugs is a powerful force in public policy.

80. America’s first marijuana law was enacted at Jamestown Colony, Virginia in 1619. It was

a law “ordering” all farmers to grow Indian hempseed. There were several other “must grow”

laws over the next 200 years (you could be jailed for not growing hemp during times of shortage

in Virginia between 1763 and 1767), and during most of that time, hemp was legal tender (you

could even pay your taxes with hemp. Hemp was such a critical crop for a number of purposes

that the government went out of its way to encourage growth.

81. Racism was a large part of the charge against marijuana, as newspapers in 1934

editorialized: “Marihuana influences Negroes to look at white people in the eye, step on white

men’s shadows and look at a white woman twice.”

Blacks and other foreigners were accused of snaring white children with marijuana; and the

story of the “assassins” became commonplace. Dr. A. E. Fossier wrote in the 1931 New Orleans

Medical and Surgical Journal: “Under the influence of hashish those fanatics would madly rush

at their enemies, and ruthlessly massacre everyone within their grasp.”

In 1914, the Harrison Act was passed, which provided federal tax penalties for opiates and

cocaine. The federal approach is important. It was considered at the time that the federal

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government did not have the constitutional power to outlaw alcohol or drugs. It is because of this

that alcohol prohibition required a constitutional amendment.

At that time in our country’s history, the judiciary regularly placed the tenth amendment in the

path of congressional regulation of “local” affairs, and direct regulation of medical practice was

considered beyond congressional power under the commerce clause (since then, both provisions

have been weakened so far as to have almost no meaning).

Since drugs could not be outlawed at the federal level, the decision was made to use federal

taxes as a way around the restriction. In the Harrison Act, legal uses of opiates and cocaine were

taxed (supposedly as a revenue need by the federal government, which is the only way it would

hold up in the courts), and those who didn’t follow the law found themselves in trouble with the

treasury department.

In 1930, a new division in the Treasury Department was established — the Federal Bureau of

Narcotics — and Harry J. Anslinger was named director. This, if anything, marked the beginning

of the all-out war against marijuana. Anslinger immediately drew upon the themes of racism and

violence to draw national attention to the problem he wanted to create.

“In the year 1090, there was founded in Persia the religious and military order of the Assassins,

whose history is one of cruelty, barbarity, and murder, and for good reason: the members were

confirmed users of hashish, or marihuana, and it is from the Arabs’ ‘hashashin’ that we have the

English word ‘assassin.’”

Harry Anslinger was assisted by William Randolf Hearst, owner of a huge chain of newspapers.

Hearst had many of reasons to help. He had lost 800,000 acres of timberland to Pancho Villa and

openly expressed his racist views and proclaimed his hatred for Mexicans. Second, he had

invested heavily in the timber industry to support his newspaper chain and didn’t want to see the

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development of hemp paper in competition. And he quickly found telling lurid lies about

Mexicans (and the devil marijuana weed causing violence) had increased newspaper sales over

tenfold, increasing revenues& making him very wealthy. Hearst and Anslinger were then

supported by Dupont chemical company and various pharmaceutical companies in the effort to

outlaw cannabis. Dupont had patented nylon, and wanted hemp removed as competition. The

pharmaceutical companies could neither identify nor standardize cannabis dosages, and the

people could grow their own medicine and not have to purchase it from large companies.

82. This all set the stage for The Marijuana Tax Act of 1937. After two years of secret

planning, Anslinger brought his plan to Congress — complete with a scrapbook full of

sensational Hearst editorials, stories of ax murderers who had supposedly smoked marijuana, and

racial slurs.

83. It was a remarkably short set of hearings. The only wrench in Anslinger’s gears was the

appearance by Dr. William C. Woodward, Legislative Council of the American Medical

Association. Woodward started by slamming Harry Anslinger and the Bureau of Narcotics for

distorting earlier AMA statements that had nothing to do with marijuana and making them

appear to be AMA endorsement for Anslinger’s view.

He also reproached the legislature and the Bureau for using the term marijuana in the legislation

and not publicizing it as a bill about cannabis or hemp. At this point, marijuana was a

sensationalist word used to refer to Mexicans smoking a drug and had not been connected in

most people’s minds to the existing cannabis/hemp plant. Thus, many who had legitimate

reasons to oppose the bill weren’t even aware of it.

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Woodward went on to state that the AMA was opposed to the legislation and further questioned

the approach of the hearings, coming close to outright accusation of misconduct by Anslinger

and the committee:

“That there is a certain amount of narcotic addiction of an objectionable character no one

will deny. The newspapers have called attention to it so prominently that there must be some

grounds for [their] statements [even Woodward was partially taken in by Hearst's

propaganda]. It has surprised me, however, that the facts on which these statements have

been based have not been brought before this committee by competent primary evidence.

We are referred to newspaper publications concerning the prevalence of marihuana

addiction. We are told that the use of marihuana causes crime.

But yet no one has been produced from the Bureau of Prisons to show the number of

prisoners who have been found addicted to the marihuana habit. An informed inquiry shows

that the Bureau of Prisons has no evidence on that point.

You have been told that school children are great users of marihuana cigarettes. No one has

been summoned from the Children’s Bureau to show the nature and extent of the habit,

among children.

Inquiry of the Children’s Bureau shows that they have had no occasion to investigate it and

know nothing particularly of it.

Inquiry of the Office of Education— and they certainly should know something of the

prevalence of the habit among the school children of the country, if there is a prevalent habit

— indicates that they have had no occasion to investigate and know nothing of it.

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Moreover, there is in the Treasury Department itself, the Public Health Service, with its

Division of Mental Hygiene. The Division of Mental Hygiene was, in the first place, the

Division of Narcotics. It was converted into the Division of Mental Hygiene, I think, about

1930. That particular Bureau has control at the present time of the narcotics farms that were

created about 1929 or 1930 and came into operation a few years later. No one has been

summoned from that Bureau to give evidence on that point.

Informal inquiry by me indicates that they have had no record of any marihuana of Cannabis

addicts who have ever been committed to those farms.

The bureau of Public Health Service has also a division of pharmacology. If you desire

evidence as to the pharmacology of Cannabis, that obviously is the place where you can get

direct and primary evidence, rather than the indirect hearsay evidence.”

84. Committee members then proceeded to attack Dr. Woodward, questioning his motives in

opposing the legislation. Even the Chairman joined in:

The Chairman: “If you want to advise us on legislation, you ought to come here with some

constructive proposals, rather than criticism, rather than trying to throw obstacles in the way of

something that the Federal Government is trying to do. It has not only an unselfish motive in

this, but they have a serious responsibility.”

Dr. Woodward: “We cannot understand yet, Mr. Chairman, why this bill should have been

prepared in secret for 2 years without any intimation, even, to the profession, that it was being

prepared.”

85. The Chairman quoted several of the sensational stories & the committee passed the

legislation on. And on the floor of the House, the entire discussion reads:

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Member from upstate New York: “Mr. Speaker, what is this bill about?”

Speaker Rayburn: “I don’t know. It has something to do with a thing called marihuana. I think

it’s a narcotic of some kind.”

“Mr. Speaker, does the American Medical Association support this bill?”

Member on the committee jumps up and says: “Their Doctor Wentworth[sic] came down here.

They support this bill 100 percent.”

And on the basis of that lie, on August 2, 1937, marijuana became illegal at the federal level.

The entire coverage in the New York Times: “President Roosevelt signed today a bill to curb

traffic in the narcotic, marihuana, through heavy taxes on transactions.”

VII. STATEMENT OF DAMAGES

86. As a direct and proximate result of the wrongful acts and/or omissions of the

Defendants, as set forth above, Plaintiff has sustained the following injuries and damages:

a. Physical pain and mental anguish, past and present;

b. Severe emotional distress, humiliation, fear, and embarrassment;

c. Loss of property and labor, and costs of replacing property and labor;

d. Time and effort to secure the return of property unlawfully taken; and

e. Attorney’s fees.

87. The actions of Defendants were malicious or oppressive, and amounted to gross

negligence and a reckless disregard for the Plaintiff, and justify the imposition of punitive or

exemplary damages upon these Defendants in order to encourage these Defendants, as well as

other police officers, will not repeat the same, or similar conduct.

WHEREFORE, the Plaintiff prays for damages as follows:

a. That this court declares the rights of all parties;

b. The return of all cannabis & cannabis apparatus & related material & property.

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c. A personal apology from the Del Norte Sheriffs department including all officers

involved with this case.

d. That this court issue a preliminary injunction, and a permanent injunction, enjoining

Defendants and their agents, servants, and employees, and all persons acting under and in

concert with, or for them, from continuing to violate the constitutional rights of qualified

medical cannabis patients by seizing and/or destroying their property.

e. The Sheriffs department pay for plaintiffs attorney cost in criminal complaint ($50.00)

In the likely case that the Sheriffs department has destroyed Plaintiffs cannabis the plaintiff prays

for the following:

a) That this court declares the rights of all parties;

b) Compensatory damages, including but not limited to general and special damages, or

$5,000 or whichever is greater;

c) Exemplary and punitive damages in the amount of $5,000;

d) Cost of suit herein;

e) That this court issue an order requiring Defendants to show cause as to why they should

not be enjoined, as hereinafter set forth;

f) That this court issue a preliminary injunction, and a permanent injunction, enjoining

Defendants and their agents, servants, and employees, and all persons acting under and in

concert with, or for them, from continuing to violate the constitutional rights of qualified

medical cannabis patients by seizing and/or destroying their property; and

g) All other compensatory, equitable and declaratory relief as this Court deems just.

Dated: ___________ Respectfully submitted,

BY: _______________________JAMES XXXXXXX

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JAMES XXXXXXX

In Proper PersonaJAMES XXXXXXX



JAMES XXXXXXX, ) No. ))

Plaintiff, )) NOTICE OF MOTION TO ) RETURN PROPERTY) ILLEGALLY SEIZED;

v. ) MEMORANDUM OF POINTSActing District Attorney Kathleen Bryson )& Del Norte Sheriffs deputies John Does #1-20 )

) AND AUTHORITIES IN ) SUPPORT THEREOF; ORDER)

Defendant. ) Date:) Time:

__________________________________________) Place:

TO THE CLERK OF THE ABOVE-ENTITLED COURT; THE DISTRICT ATTORNEY FOR THE COUNTY OF DEL NORTE COUNTY; AND THE DEL NORTE SHERIFF’S DEPT.

PLEASE TAKE NOTICE that at the aforementioned date, time, and place of the above-

entitled court, or as soon thereafter as movant may be heard in the above-entitled court, Movant

JAMES XXXXXXX will move for an order to return property seized from movant’s person

and/or vehicle on March 18, 2013 by members of the Del Norte Sheriff’s Law Enforcement

Agency. The property sought to be returned is as follows: medical cannabis and apparatus,

monies, and anything else that may have been seized.

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This motion is made on the grounds that the property seized is being held unreasonably

and there is no probable cause to believe that a crime has been committed.

This motion is based on California Health and Safety Code Section 11362.5, California

Health and Safety Code Sections 11362.7 et seq., Penal Code Sections 1536, 1538.5 and 1540,

article I, section 15 of the California Constitution, Garden Grove v. Superior Court (Kha) (2007)

157 Cal.App.4th 355, this notice of motion, the attached memorandum of points and authorities

served and filed herewith, and such supplemental memoranda of points and authorities as may

hereafter be filed with the court or stated at oral argument, on all papers and records on file in

this action, and on such oral and documentary evidence as may be presented at the hearing of the

motion.

Dated: ______________ Respectfully submitted,

BY: _______________________JAMES XXXXXXX

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JAMES XXXXXXX, ) No. ))

Plaintiff, )) ORDER FOR)) RETURN OF PROPERTY

v. )Acting District Attorney Kathleen Bryson )& Del Norte Sheriffs deputies John Does #1-20 )

TO THE DEL NORTE SHERIFF’S DEPARTMENT AND ANY LAW ENFORCEMENT AGENCY HAVING POSSESSION OF ITEMS LISTED BELOW:

Good cause having been shown, you are hereby ordered to immediately return each of the

items listed below to JAMES XXXXXXX:

Cannabis, medical apparatus, & all other seized property.

IT IS SO ORDERED.

Dated:

_______________________________JUDGE OF THE SUPERIOR COURT

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CERTIFICATE OF SERVICE

I am a resident of the State of California and over the age of eighteen years. My address is XXXXX. On February 11, 2014, I served the within document(s):

NOTICE OF MOTION TO RETURN PROPERTY ILLEGALLY SEIZED; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; ORDER FOR RETURN OF PROPERTY

via first-class mail upon:

DISTRICT ATTORNEY Kathleen Bryson981 H StreetCrescent City, CA 95531

Gretchen StuhrCounty Counsel981 H Street, Suite 220Crescent City, CA 95531Phone (707) 464-7208

I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

Executed on this ___ day of June, in XXXXXX, California.

________________________

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