Sheriff’s destruction of medical marijuana leads to lawsuit

January 6, 2010

By KAREN VELIE

A Los Osos woman has filed a lawsuit seeking $36,000 to replace six pounds of medical marijuana the San Luis Obispo County Sheriff’s Department seized from her home and then destroyed.

Before 1988, Kimberly Marshall worked in the foreclosure industry. Her life changed after she was given a blood transfusion contaminated with hepatitis.

Following a liver cancer diagnosis, doctors informed Marshall she had less than a year to live. Though currently in remission, daily nausea, a side effect of the cancer treatment, has caused her weight to drop to as low as 98 pounds.

In addition, a car accident left Marshall with two herniated discs, a fractured disc and a broken disc. Marshall has endured two back surgeries, has constant pain and for days at a time is bedridden. Unable to bend down to tie her shoes, she wears slip-ons.

The 46-year-old single parent refuses to take the eight Vicodin a day she is currently prescribed, selecting instead to use medical cannabis to kill the pain and reduce the nausea.

“They (doctors) want me to be on prescription drugs,” Marshall said. “I am a single parent and I can’t be high on drugs where I can’t think.”

On March 31, sheriff’s deputies searched Marshall’s house based on her son’s probation status following a teenage head butting incident. Even though Marshall was not at home during the search, deputies opened a locked cabinet in her room and discovered two containers of medical cannabis.

Marshall’s son informed deputies the medical cannibals they found belonged to his mother. After concerned neighbors phoned Marshall about the search, she immediately phoned the deputies at her home and told them the marijuana was hers.

During the call, Marshall said the deputy informed her that the sheriff’s department would return her medication after she provided them with the proper paperwork. Marshall provided the paperwork, as requested.

However, on August 3, Sheriff’s Deputy David Walker asked the district attorney’s office to prosecute Marshall for possession. He noted in his request that she had provided him with a physician’s statement that allowed her to possess up to six pounds of dried marijuana buds.

On August 28, Marshall also provided the San Luis Obispo County District Attorney’s office with documentation of her physician’s recommendation and state medical marijuana card. A few days later, the district attorney rejected the sheriff’s request for prosecution based on her medical defense.

On Sept. 2, sheriff officials asked the district attorney’s office to request an order to destroy Marshall’s cannabis, alleging that it was not medical marijuana.

“To the best of my knowledge, there has not been any request for return of medical marijuana for medical reasons …, each case of medical marijuana was reviewed and determined not to be for medical purposes,” said Sheriff’s Deputy Jerry McDaniel in his request.

On Oct. 9, San Luis Obispo Superior Court Judge Dodie Harmon ordered Marshall’s property to be disposed of or destroyed by the sheriff’s department. A week later, unaware of the order, Marshall’s attorney, Harold Meskick, filed a motion for return of his client’s medical marijuana.

In response to the request, County Counsel informed Meskick that the property had been destroyed.

“As far as I understand the factual background, the sheriff’s department has no record of your client’s possession of a physician’s statement,” said Deputy County Counsel Ann Duggan, the sheriff’s department’s legal advisor, in the letter to Meskick.

Duggan did not return requests for comment.

In the claim for damages, Marshall’s civil attorney, Louis Koory, said the sheriff’s department destroyed his client’s property while “acting under the color of California law.”

“The sheriff and the county were aware that under California law the Sheriff was compelled to return the claimant’s property in the absence of pending criminal action,” Koory said in the civil claim filed on Dec. 23.

In 2008, following a contempt of court action, the sheriff’s department was forced to return Craig Steffens’ medical cannabis to him. Steffens’ pot was seized after he was discovered smoking it outside the San Luis Obispo courthouse, even though he produced a state medical marijuana user card.

“These are personal attacks by the marijuana lobbyists because we have been the point of the spear,” said Rob Bryn, spokesman for the San Luis Obispo County Sheriff’s Department, prior to the lawsuit being filed. “If this defendant didn’t get their dope back, there is another reason.”

Bryn went on to question the legality of Marshall possessing six pounds of marijuana.

In response, Marshall said that she uses the medical marijuana in a number of ways that require a greater amount of the plant such as making butter from it, vaporizing the buds and making a poultice to treat muscle aches. Marshall, who goes through approximately six pounds of cannabis every 18 months, notes that buying marijuana in bulk is a cost saver.

“If they thought it was an excessive amount, she still had the right to prove she was in legal possession of that property,” Koory said. “They denied her that right.”