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: Michael Maresh

GCPD, USD 457, STATE AMONG THOSE NAMED IN BANDA LAWSUIT

The Garden City Police Department, Garden City USD 457, the State of 
Kansas, the governor and the Kansas Department of Children and 
Families are among the defendants in a lawsuit being prepared by 
attorneys for Shona Banda that alleges her rights to use cannabis for 
medicinal purposes and maintain custody of her son have been violated.

Banda's civil rights attorney, Matthew Pappas, worked with Sarah 
Swain, her criminal defense attorney, in preparing the lawsuit. They 
intend to file it in federal court in Wichita.

The Telegram obtained a copy of the lawsuit that has been prepared. 
Banda is requesting several things in her lawsuit, including:

A fundamental right to use cannabis as recommended by her physician 
to treat Crohn's disease.

That she be given the right to make decisions concerning the care, 
custody and control of her younger son that cannot be taken away due 
to her use of marijuana for medical purposes.

Injunctions prohibiting the defendants from continuing to enforce the 
Kansas Controlled Substance Act to deprive her of custody of her son, 
and to prohibit her from possessing, preparing, storing or 
transporting cannabis to treat her disease.

For damages to be proven at trial, attorney fees and other relief the 
court deems appropriate in the case.

Banda has been criminally charged in Finney County with endangering a 
child, unlawful manufacturing of a controlled substance, possession 
of marijuana with intent to distribute within 1,000 feet of a school, 
possession of paraphernalia to use controlled substances and 
possession of paraphernalia with intent to manufacture, plant or 
cultivate a controlled substance.

According to authorities, the drug investigation and 
child-in-need-of-care case came about as a result of comments Banda's 
11-year-old son made during a drug education program March 24 at his 
school, Bernadine Sitts Intermediate Center, that resulted in the 
Department of Children and Families and Garden City Police Department 
being contacted.

According to police, the boy said his mother and other adults at his 
residence were avid drug users and there was a lot of drug use 
occurring there, which led police to suspect drugs were present in the home.

Officers and DCF officials went to Banda's home, 901 Conkling St., on 
March 24 after police say her son told his classmates, while learning 
about marijuana at school, "that his mom smokes a lot of it."

A criminal arrest affidavit for Banda states that after securing a 
search warrant for her home on March 24, "approximately 500 grams of 
suspected marijuana, multiple marijuana smoking pipes, three 
'vaporizers' that were actively manufacturing cannabis oil and 
multiple other items related to packaging and ingestion of marijuana 
were seized from the residence."

Police say that since all of the items were within reach of the 
child, law enforcement and DCF officials decided the boy should be 
removed from the home.

The affidavit states that the boy told police there were card games 
at his residence in which all of the participants except him smoked 
marijuana, and that the second-hand smoke hurt his lungs. He said on 
some occasions, he was offered marijuana during the card games, but 
he turned it down.

According to the affidavit, the boy also told police the smoke made 
him sick to the point of being nauseous and not able to think 
straight, and that he thought it was bad that his mom smoked 
marijuana and that he had thought in the past about throwing the drugs out.

According to the lawsuit, Banda followed the recommendations of 
qualified licensed doctors when she began using oil derived from 
cannabis to treat her Crohn's disease.

Her children were aware of her marijuana use and she had educated 
them about the drug and cautioned that it was only a medication she 
uses to treat her disease, according to the lawsuit.

The lawsuit claims that Tyler Stubenhofer, a former counselor at 
Bernadine Sitts, was talking to children at the school about 
marijuana use, when the boy informed him the proper term is cannabis 
and that his mother used it to treat her Crohn's disease.

The child was taken outside the class and questioned by school 
administrators without his parents' knowledge or presence, the lawsuit alleges.

According to the lawsuit, the GCPD was called and officers questioned 
Banda's son outside the presence of his parents and have kept custody 
of the child despite repeated demands that he be returned to Banda.

The lawsuit reads that at no time has Banda allowed a minor child to 
use marijuana, and that the State of Kansas has taken action that 
deprived her of her parental rights, control and custodial decision 
making in regards to her younger son.

In the lawsuit, Pappas cited two case laws that revolve around the 
14th Amendment of the U.S. Constitution.

"It cannot be doubted that the Due Process Clause of the Fourteenth 
Amendment protects the fundamental rights of parents to make 
decisions concerning the care, custody and control of their 
children," the suit reads.

According to the lawsuit, "the Due Process Clause does not permit any 
state to infringe on a fit parent's fundamental right to make 
child-rearing decisions simply because a court disagrees with the 
parents or believes a better decision could be made.

"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 lawsuit states.

The lawsuit claims that when police took Banda's son, there was no 
probable cause or allegation that he had committed a crime, and at no 
time did she give the school the right to transfer her son to the police.

The suit also states no warrant was obtained or consent received from 
Banda or the boy's father to seize her younger son, to control the 
custody and question him without her consent.

The following defendants have been named in the lawsuit: the state; 
Gov. Sam Brownback; the DCF and its secretary, Phyllis Gilmore; the 
GCPD; former Garden City Police Chief James Hawkins; USD 457, 
Stubenhofer; and others yet to be known.

Calls to the DCF were not returned, and Garden City Police Capt. 
Randy Ralston said his department has no comment on the lawsuit. USD 
457 Superintendent Steve Karlin said he had not been notified of the 
lawsuit and could not comment. Stubenhofer also said he could not comment.

Hawkins could not be reached for comment, and the governor's office 
did not respond to a request seeking comment.

Banda's preliminary hearing in her criminal case is scheduled for 
8:30 a.m. Nov. 16 before Finney County District Court Chief Judge 
Wendel Wurst. She could face up to 30 years in prison if convicted.
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MAP posted-by: Jay Bergstrom