Litigation
Jul. 20, 2002
Up in Smoke
Jeffrey S. Rodrigs now feels like such a fool for contacting the Capitola Police Department to report the theft of one of the marijuana plants that he grew in his backyard.
Jeffrey S. Rodrigs now feels like such a fool for contacting the Capitola Police Department to report the theft of one of the marijuana plants that he grew in his backyard.
"That's the stupidest thing I could have done," Rodrigs, 36, says.
But at the time, in late 1999, asking the authorities for help made sense to Rodrigs, who has multiple sclerosis, because he believed that he had complied with the law regulating the medical use of pot.
Instead of assisting him, though, the police confiscated close to 12 pounds of pot from his apartment.
"I never saw it again," Rodrigs says. "I don't know if they had a big party or sold it all or what happened. I felt robbed."
His co-counsel, Benjamin Rice of Santa Cruz, filed a lawsuit alleging, among other things, that the officers involved had breached their mandatory duty to follow the Compassionate Use Act of 1996.
"They took all of his medicine and said, 'We might prosecute you,'" Rice says.
Government attorneys contend that law enforcement did nothing wrong.
The plaintiff had much more marijuana than he could reasonably use, and he admitted giving some to his friends, defense co-counsel Stephanie Atigh of Pacific Grove says.
Moreover, the statute at issue, Health & Safety Code Section 11362.5, merely provides a potential defense at a criminal trial. It doesn't create a basis for a civil suit, Atigh says.
To paraphrase the trial judge who granted a motion for summary judgment, "The Compassionate Use Act cannot be used as a sword," Atigh says. Rodrigs v. City of Capitola, CV139674 (Santa Cruz Super. Ct. April 15, 2002).
'Pot Is a Good Thing'
Section 11362.5 permits the possession and cultivation of marijuana used for personal medical purposes based on a physician's recommendation.
For years, Rodrigs has smoked marijuana regularly to treat the symptoms of his multiple sclerosis, a chronic disease that attacks the central nervous system.
"Pot is a good thing," he says. "It controls my spasticity. It gives me an appetite so I can eat."
He says that he started growing the narcotic plant "a little bit before" the theft that occurred Oct. 7, 1999.
The next day, he spoke with Capitola Police Officer Michael A. Friebel, who went to Rodrigs' home to investigate.
Even before reaching the front door, Friebel said that he could smell the strong odor of the drug.
He stated in court papers that, once inside the residence, "I observed marijuana leaves, stems, seeds and buds in various stages of processing littered throughout the front rooms."
In the backyard, he noticed growing pot plants ranging in height from 1 to 8 feet.
"I could see some of the plants from the street," he stated.
Rodrigs told the officer that he had a valid doctor's recommendation for the medical use of marijuana.
Friebel had no experience in handling a case that involved potentially legal pot possession. So he left that day without confiscating anything.
For guidance, he sought help from Sgt. James Hart, a member of the Santa Cruz County Sheriff's Marijuana Enforcement Team.
On Oct. 13, 1999, Hart accompanied Friebel on a return visit to Rodrigs' place.
Based on Rodrigs' estimate that he smoked an eighth of an ounce per day, the officers calculated that he would need an annual supply of about three pounds. Hart figured that Rodrigs had enough to last four years.
A 'Vast Stockpile' of 'Contraband'
To Hart, Rodrigs violated the law by having more pot than he needed. An amount that could last four years is too much because, according to Hart, marijuana has only a two-year shelf life.
In addition, the officers claim that Rodrigs "volunteered" that he shared his pot with his friends.
When Rodrigs showed the police a valid recommendation from Dr. Eugene Schoenfeld of Sausalito, Hart allegedly called the physician a "quack."
Friebel then seized what the defense calls a "vast stockpile" of "contraband."
Rodrigs never was arrested. Friebel did submit a report to the Santa Cruz district attorney's office, which declined to file charges.
On Nov. 12, 1999, the police obtained a court order to destroy Rodrigs' marijuana. The police did not inform Rodrigs of its intent to seek permission to get rid of his drug. And the city of Capitola did not advise the court that Rodrigs had a valid medical recommendation.
Two months later, Rodrigs' counsel requested the return of his client's marijuana. Word came back that there was nothing left to recover.
In the ensuing lawsuit, Rodrigs demanded to recover the pot's value, estimated at $4,000 per pound, according to the complaint. He also alleged intentional infliction of emotional distress.
"I was depressed and anxious over this entire situation," Rodrigs stated in court papers. "I was left without my marijuana. I feared a criminal prosecution. This affected my entire state of well-being."
Schoenfeld joined as a plaintiff, claiming that Hart committed slander by purportedly referring to him as a quack.
'They Smoked Out Together'
Rice says that the officers showed a disdain for the law.
"People who have medical marijuana recommendations ought to be left alone," he says.
And the police are in no position to decide how much pot is too much.
"These guys aren't doctors," he says. "It's outrageous to let law enforcement officers, some of whom hate this law, make this determination."
Rice contends that, contrary to the defense claim of a two-year shelf life for marijuana, it can last longer if properly stored through techniques such as freezing. And he adds that, as this case proves, someone's supply could diminish because of theft. So, in some situations, it's prudent to grow more than absolutely necessary, he says.
But Santa Cruz Assistant County Counsel Julia Hill, a defense co-counsel, doesn't buy that argument, especially because Rodrigs admitted under oath that he gave some of his stash to his friends.
"They smoked out together," Hill says. "For me, that was a critical issue. It justified the officers' conduct."
What's the Value of Contraband?
The suit also alleged that Friebel committed the civil tort of conversion by taking Rodrigs' "personal property."
Plaintiffs' co-counsel George J. Gigarjian of Santa Cruz argued in court papers that the "street value" of pot is one way of assessing damages.
But the defense counters that contraband may have, at most, an intrinsic value "such as the value of the paper on which an [illegal] lottery ticket is printed."
In Rodrigs' case, that would mean he perhaps could recover the cost of nursery plants, which doesn't amount to much, Atigh says.
"I guess you can say that it's an attractive bush," she says.
Replacing plants is one thing. But a reputation is harder to restore.
Hart's calling Schoenfeld a quack amounted to slander, the plaintiffs claim.
The comment suggested that the physician is incompetent when, in fact, he's a highly regarded doctor, Rice says.
Rodrigs stated in court papers that he began to question the physician's qualifications as a direct result of Hart's alleged statement.
Hart denied making the comment. But, even if he had, it didn't constitute a factual assertion. It was a constitutionally protected opinion, Hill says.
"Considering the totality of the circumstances, if Hart said the statement, he did so in the context of a criminal inquiry into marijuana cultivation where slang, hyperbole and even profanity would not be unusual," the defense contended in court papers.
'I Don't Feel Like I Did Anything Wrong'
Santa Cruz County Superior Court Judge Richard J. McAdams never ruled on the merits of most of the plaintiffs' arguments in granting the defense's motion for summary judgment April 15.
Instead, McAdams found that the law permitting the medicinal use of marijuana is not meant to form the basis for a civil suit.
"Prop 215 (enacted as Health & Safety Code Section 11362.5) is a shield from criminal prosecution, not a sword permitting tort liability on the part of government entities and employees," McAdams wrote in his decision.
As for the slander claim, he determined that calling the doctor a quack is nothing more than a "broad, unfocused, wholly subjective, rhetorical and hyperbolic statement" and, therefore, it's not actionable defamation.
Rice says he does not plan to appeal out of fear of creating bad law. He wishes that the statute offered some way for sick people to know how much marijuana it is permissible to grow.
"There are no guidelines here," Rice says.
Hill agrees.
"This is a really uncertain statute," she says. "It's created a lot of problems with interpretation."
Rodrigs isn't waiting for the Legislature to act. He continues to smoke and grow marijuana.
"I don't feel like I did anything wrong," he says.
SNAPSHOT
Cite: Rodrigs v. City of Capitola, CV139674 (Santa Cruz Super. Ct. April 15, 2002)
Type: Personal injury
Result: Summary judgment for the defense
Attorneys: Plaintiffs - Santa Cruz sole practitioners Benjamin Rice, George Gigarjian
Defendants - Santa Cruz Assistant County Counsel Julia Hill; sole practitioner Stephanie Atigh, of Pacific Grove, who represented the city of Capitola as a contract attorney for the Law Offices of Vincent R. Hurley in Aptos
Judge: Richard J. McAdams
Eron Yehuda
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com