Pubdate: Wed, 16 Sep 2015
Source: Garden City Telegram (KS)
Copyright: 2015 The Garden City Telegram
Contact:  http://www.gctelegram.com/
Details: http://www.mapinc.org/media/1476
Author: Andy Marso, KHI News Service

BANDA LAWSUIT CLAIMS RIGHT TO USE MEDICAL MARIJUANA

Lawyers for Garden City resident Shona Banda have prepared a lawsuit 
against Gov. Sam Brownback and the state agency that has custody of 
her child, claiming she has a constitutional right to use cannabis to 
treat her Crohn's disease.

Banda self-published a book and posted videos online in which she 
says cannabis is the only treatment able to calm her condition. The 
national medical marijuana movement has rallied around her since 
March, when Garden City police came to her home and confiscated her 
cannabis after her 11-year-old son spoke up about her use of it at a 
school anti-drug presentation.

The Kansas Department for Children and Families subsequently took 
custody of Banda's son, saying the home environment was not safe for 
him, and the Finney County attorney filed drug-related criminal 
charges against her.

A draft of the lawsuit to be filed in federal court was posted online 
Monday. It asks for the state to return custody of Banda's son to 
her. It also names the Garden City Police Department as a defendant, 
claiming the search of her home was not constitutional.

But what's likely to attract the most attention from medical 
marijuana advocates is the suit's claim that the U.S. Constitution's 
14th Amendment gives her the "fundamental right" to self-medicate 
with cannabis.

"Plaintiff has a liberty interest specially protected by the Due 
Process Clause of the Fourteenth Amendment that embraces the right to 
make a life-shaping decision to use medical marijuana to preserve 
bodily integrity, avoid intolerable pain, alleviate symptoms and 
ameliorate the extreme and debilitating symptoms of Crohn's disease," 
the suit states.

To back up that claim, Banda's attorneys cite the 32 states that have 
legalized medical marijuana in some form, a 2015 budget bill passed 
by Congress that instructed the U.S. Department of Justice not to 
spend money enforcing federal marijuana laws that conflict with state 
laws, and several research studies that support claims of cannabis' 
medical benefits.

Marijuana remains an illegal drug at the federal level and under 
Kansas state law, which calls for felony charges for a second 
conviction of possession of any amount of marijuana.

Research on the medical benefits of marijuana was scarce until 
California became the first state to legalize it for medicinal use in 
1996. Studies have remained limited because the U.S. Drug Enforcement 
Agency still classifies marijuana as a Schedule I controlled 
substance, which carries the highest level of prohibition.

Initial research has shown some promise for treating conditions like 
Crohn's disease and pediatric seizure disorders, and some drugs that 
contain cannabis developed by traditional pharmaceutical companies 
have gained FDA approval.

Doug Bonney, an attorney with the American Civil Liberties Union of 
Kansas and Missouri, said there's little case law that supports a 
constitutional right to medical cannabis.

"Their theories really stretch existing precedent on a person's right 
to control their own health care," Bonney said after reading the 
draft of the lawsuit.

Banda is represented by Lawrence criminal defense attorney Sarah 
Swain and California lawyer Matthew Pappas, who specializes in civil 
rights and disability law. Neither was available for comment on the suit.

Kansas legislators have shown little appetite for changing state 
marijuana law, even as neighboring Colorado has gone beyond medicinal 
use to allow marijuana's recreational use.

In the 2015 session, the Kansas Legislature declined to approve bills 
decreasing the penalties for possession, allowing broad use of 
marijuana for medical reasons and permitting much narrower use of 
non-intoxicating "hemp oil" for childhood seizure disorders.

The oil bill was the first medical marijuana bill in Kansas to clear 
committee. It passed the House of Representatives, but the Senate 
declined to take it up.

The governor's office declined to comment on Brownback being named a 
defendant in Banda's suit.

Theresa Freed, a DCF spokeswoman, said she would not comment on the 
suit itself but said the agency's mission is to "protect children, 
promote healthy families and encourage personal responsibility."

"Our social workers are trained to assess the safety of a home and 
make an appropriate recommendation to the court," Freed said. 
"Marijuana is an illegal substance in the state of Kansas. It can 
have both direct and indirect detrimental consequences on families."
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MAP posted-by: Jay Bergstrom