Thursday, January 14, 2010

restitution for law enforcement blunder

Was it sheer contempt of the law or a bureaucratic bumble? Whatever
happened, the county could be on the hook for nearly $40,000 to replace
Kimberley Marshall’s pot.

The 46-year old Los Osos resident filed a claim for damages against
Sheriff Patrick Hedges and the county alleging the sheriff’s
department unlawfully seized, and then had destroyed, six pounds of
medicinal marijuana. If successful, Marshall could be the first medical
marijuana patient in San Luis Obispo County awarded monetary
compensation for confiscated cannabis.

Marshall, a survivor of liver cancer, suffers daily chronic pain after
two surgeries for lumbar and other injuries, among multiple afflictions,
according to the claim filed Dec. 23. She is seeking
$36,000â€"$6,000 per pound of marijuana destroyedâ€"plus
attorney fees and damages.

On March 31, sheriff’s deputies entered Marshall’s home in
a warrantless search involving her son, who was on probation. Somehow
during the course of the search, deputies discovered her 18-month supply
of marijuana, which the claim states was secured in a locked closet in
her bedroom.

The deputies were reportedly told by Marshall’s son the marijuana
was medicinal and she was contacted; over the phone, she explained her
condition and demanded the pot be left at the home. The claim also
states that Marshall’s documentation was visible to the deputies
during the search, but when she returned, she allegedly found it behind
some furniture in her bedroom.

Marshall was told by deputies that once she showed proper paperwork, her
property would be returned. Four months later, when finally interviewed
by a deputy, she presented her physician’s letter of
recommendation and told deputies further documentation of her medical
condition was in the possession of her lawyer at the time, Harold
Mesick, who said he was in contact with the district attorney’s
office regarding the pending criminal charges. On September 1, the
district attorney rejected the criminal case based on her medical

Then something strange happened. The very next day the sheriff’s
department notified the D.A.’s office that the cannabis in lockup
was no longer neededâ€"that they had not received a request for a
return of property nor deemed the marijuana for medicinal
purposesâ€"and requested the D.A. obtain a court order for its

On Oct. 5, the D.A. filed the request, and four days later, Judge Dodie
Harmon ordered the property destroyed. Unaware of this, Mesick filed a
request for the return of the property on Oct. 22 and was later told by
the county counsel that it had already been destroyed and that the
sheriff’s department had no record of Marshall’s
physician’s recommendation.

Asked why the return request was not made until a month after the D.A.
rejected Marshall’s case, Mesick could not comment.

“Basically, due process wasn’t followed in this
case,†said Louis Koory, Marshall’s civil attorney.
“Every citizen has a right to retain their property. There is a
procedure that needs to be followed, and in this case,
it wasn’t.â€

According to Koory, because there were no pending criminal charges, and
because Mesick had already established Marshall was a qualified medical
cannabis patient, the sheriff’s department violated her due
process rights and deprived her of the use and value of her property by
having the cannabis destroyed. Koory told New Times he has no indication
that the destruction of Marshall’s property was contemptuous and
that it may have been as simple as a lack of communication between two

“We’re not saying it was intentional, but it
doesn’t have to be intentional,†Koory said. “It
could very well be negligent. Bottom line is, she’s owed

The sheriff’s department could not comment on the case either,
except to say that it’s a publicity stunt by medical marijuana

“Cases like these are brought on by the medical marijuana lobby
as a way to garner publicity,†sheriff’s department
spokesman Rob Bryn said. “And in this case, the sheriffs
department is not willing to play along.â€

“All I can tell you is that this case is much more complicated
than originally reported,†he added.

According to Bryn, department protocol for the destruction of property
deemed either illegal or no longer related to a criminal case varies
depending on the type of property. When it comes to marijuana, he said,
it is taken to an undisclosed location out of the county in an armed
caravan and incinerated with state and federal oversight.

Should Marshall succeed in her claim, she would be the first medical
marijuana patient in the county to be reimbursed for seized marijuana.

In July, a landmark ruling in Butte County determined a qualified
medical marijuana patient may continue an action for damages against the
county for the alleged unlawful seizure of medical marijuana plants.
While the Marshall case does not involve plants per se, Koory maintained
that the Butte case provides a legal precedent for their claim.

The SLO County Sheriff’s Department has earned a reputation as
particularly aggressive when it comes to medical marijuana. In 2008,
Sheriff Pat Hedges refused to return a small bag of pot to Arroyo Grande
resident D. Craig Steffens, even after Steffens established he had a
physician’s recommendation and criminal charges against him were
dropped. A judge ordered Hedges to return the cannabis, but Hedges
refused until threatened with a contempt-of-court order.

Under county medicinal marijuana law, a qualified patient can possess up
to eight ounces of pot, unless a licensed physician recommends a larger

According to Koory, Marshall’s claim is in review and the county
counsel has six months to accept or reject it. He expects the latter. At
that point, Marshall could choose to file a civil lawsuit against Hedges
and the county.


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