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September
8 / 9, 2007
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Lindorff
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The Case of Jose Maria Sison
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3, 2007
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Cockburn
Brits Flee from Basra
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Frank
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A Look at Bush's Iran War Plans
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1 / 2, 2007
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Cockburn
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Keen
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Cockburn
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Rosen
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Craig Roberts
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George W. Told the Nation
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Weekend
Edition
September 8 / 9, 2007
Denney vs. DEA
Heading for Trial
Will
Snoops Get Stopped?
By FRED GARDNER
U.S. District Judge Lawrence K. Karlton
has denied the Drug Enforcement Administration's motion to dismiss
a civil suit brought by Philip A. Denney, MD. The case will be
tried in June 2008 in Sacramento. Denney is seeking to enjoin
government agents from infiltrating a medical practice under
false pretenses.
In the Fall of 2005, as part of an investigation run by the DEA,
an agent from the Alcohol, Tobacco and Firearms Bureau named
Steven Decker and an informant controlled by the Redding Police
Department visited Denney's Redding office feigning ailments
and seeking approval to medicate with marijuana. The visits to
Denney were described in great detail in two "Investigative
Narratives" provided to Denney by a concerned citizen. Their
sole motive, the DEA contends, was to gain admittance to Dixon
Herbs, a nearby dispensary that was under investigation.
Whether or not he was the focus of the investigation, Denney
contends, the agents' visits inhibited his ability to discuss
marijuana use with patients. The First Amendment right of doctors
to do so freely was upheld in a case called Conant v. Walter
by two federal judges and ultimately by the 9th Circuit Court
of Appeal. Denney's suit charges that the DEA violated the Conant
injunction.
Denney and attorney Zenia Gilg now get to depose participants
and review relevant documents. They must show that the investigators
visiting his office were motivated by "retaliatory animus."
The facts of the case are set forth in a 36-page order that Karlton
issued Aug. 14. Here are excerpts:
"Plaintiff Philip Denney
is a physician who has been licensed to practice medicine in
the state of California since 1977. Since graduating from medical
school at the University of Southern California, he has practiced
Family, Emergency, and Occupational Medicine. He has never been
disciplined by the state medical board, nor has he had his hospital
privileges revoked, suspended, or restricted ...
"Dr. Denney is an outspoken proponent of medical marijuana.
He has been qualified to testify as an expert witness regarding
the use of cannabis in at least 17 counties ... has testified
before the California Medical Board regarding medicinal cannabis,
and is a founding member of the Society of Cannabis Clinicians."
Karlton recounts that Dixon
Herbs had twice turned away undercover operatives who lacked
doctors' recommendations. On September 21, 2005 a "Confidential
Source" (CS) was sent to Denney's office.
"The receptionist asked
for his/her medical records, which the CS reported were unavailable
because he/she had recently moved from Mississippi and that the
records had been destroyed in Hurricane Katrina. The receptionist
went out of the office and, it is claimed, looked at the CS's
vehicle to confirm that it had Mississippi license plates, which
it did.
"Thereafter, Dr. Denney examined the CS, whose chief complaint
was a pinched sciatic nerve that caused chronic pain. Dr. Denney
asked if he/she attempted other mainstream prescription medications,
and was told that he/she did, but that these medications caused
stomach problems. Plaintiff then indicated that the CS was a
candidate for the medical use of marijuana and explained that
it was to be used only as recommended, not as a recreational
drug. He then gave the CS a written recommendation.
"While the CS was inside, an investigator surveilled the
office from the street. Although fitting the CS with a covert
transmitter or monitoring device had apparently been considered,
the investigators decided against it because the transaction
was to take place within a doctor's office. Before the CS entered
the office, the investigators checked him for contraband and
money and established a prearranged meeting point where they
were to meet after he left plaintiff's office ...
"On November 9, 2005, defendants DEA Agent Dennis Hale,
ATF Agent Steven Decker, and Redding Police Officers Tracy Miller
and Eric Wallace conducted a briefing regarding the procurement
of a medical marijuana recommendation from plaintiff. Agent Decker
was chosen to procure the marijuana recommendation and use it
at Dixon Herbs because he was the only conveniently available
agent with an appropriate undercover identity. The investigators
then approached plaintiff's office and surveilled it while Agent
Decker was inside.
"Using a false driver's license, Agent Decker told plaintiff's
receptionist that his name was Steven Hoffmaster. When asked
for prior medical records, he stated that he had been to a hospital
in Santa Clara but could not recall which one. The receptionist
called several hospitals in Santa Clara but found no record of
a Steven Hoffmaster. Agent Decker was told that the examination
could proceed while the receptionist tried to locate his prior
medical records.
"During the examination, Agent Decker told Dr. Denney that
he had been in a motorcycle accident, which caused him to have
daily pain in his neck. Agent Decker then showed plaintiff a
scar on his neck, the product of the alleged motorcycle accident.
After the examination, Dr. Denney provided a written recommendation
to Agent Decker approving the use of medical marijuana ....
"The crux of plaintiff's First Amendment claim is that defendants
engaged in an investigation of his medical practice as an act
of retaliation for his speech concerning medical marijuana. In
Conant, the Ninth Circuit upheld a permanent injunction enjoining
the government from revoking a physician's license to prescribe
controlled substances based solely on the physician's professional
recommendation of the use of medical marijuana, and, as particularly
relevant here, from conducting an investigation of a physician
based on the same impermissible source of sound medical information.
"Conant further rejected the government's argument that
the injunction against investigations of physicians would hamper
law enforcement efforts. 'Because a doctor's recommendation does
not itself constitute illegal conduct, the portion of the injunction
barring investigations solely on that basis does not interfere
with the federal government's ability to enforce its laws.' Furthermore,
the Conant injunction does not bar investigations where the government
has a good faith belief that it has substantial evidence of criminal
conduct.
"Although Conant arose against the backdrop of a federal
policy of revoking the drug prescription licenses of doctors
who recommend marijuana, its holding, contrary to the federal
defendants' portrayal, is not limited to license revocation.
Rather, the district court also forbade any investigation of
a doctor solely on the basis that he or she recommended medical
marijuana. In other words, an investigation motivated by disagreement
with the doctor's speech, even if not directly connected to the
ultimate objective of license revocation, is nevertheless barred
by the Conant injunction."
What Denney
Needs to Prove
Denney must overcome three hurdles, according to Karlton:
"In order to prove a retaliatory
claim, plaintiff must demonstrate that (1) defendants possessed
an impermissible motive to interfere with this First Amendment
rights, (2) that defendants' conduct would chill a physician
of ordinary firmness from future first Amendment activities,
and (3) that the defendants would not have engaged in the conduct
in question but for the retaliatory motive ..."
The second hurdle is very low.
Doctors tend to be conservative and a physician of ordinary firmness
(no sexist remarks, please) would not do anything s/he thinks
might displease the DEA.
The other two hurdles seem not only high but unfair from the
victim's perspective. What's motive got to do with it? If a hit
man shoots the wrong person by mistake, what does it matter to
the victim that he wasn't the intended target? The DEA asserted
in its motion to dismiss and will argue at trial that the surreptitious
visits to Dr. Denney were incidental to the investigation of
Dixon Herbs and that no animus motivated them. But to Denney,
the realization that he'd been misled by government agents was
extremely upsetting regardless of the agents' motives. After
learning of the visits, his complaint states, he became more
suspicious of his patients and less open in discussing marijuana
use with them.
Certainly in lying to Denney in order to get a desired diagnosis
the agents showed disrespect for him personally and as a doctor.
That disrespect, Denney argues, showed retaliatory animus and
disregard for his rights under the First Amendment. And what
if he and his staff had not demonstrated good practice standards?
What if Amanda not asked for the (fake) patients' records and
tried diligently to obtain them? What if she had accepted the
agent's cover story with a wink and a nod instead of confirming
the out-of-state plates? What if a flyer advertising Dixon Herbs
had been observed in Denney's waiting room? What if Dr. Denney
had told the agents who were pretending to be in pain, "There's
a dispensary in town called Dixon Herbs" and provided the
address? Wouldn't the investigation then have included his practice?
The DEA claims they weren't investigating when in fact their
snoops didn't observe anything incriminating.
Denney and Gilg will seek to show that "retaliatory animus"
has driven DEA policy towards medical marijuana ever since the
passage of Prop 215 in November, 1996. (The following month DEA
Administrator Thomas Constantine met with California officials
to plan opposition to its implementation.) Perhaps they can call
a mathematician to explain that Denney's medical practice and
the Dixon Herbs dispensary are, from the DEA's perspective, in
the same set -businesses that facilitate access to marijuana
for medical use. The DEA has a retaliatory animus towards the
whole set, as proven by policy statements defining marijuana
as a dangerous drug with no medical use whatsoever.
Karlton's order continues:
"Defendants maintain that
the purpose of the undercover visits was not to investigate plaintiff,
but merely to obtain written marijuana recommendations so that
they could buy marijuana at Dixon Herbs and make a criminal case
against Ron Dixon. As support, they note that a Redding Police
Department CI who had previously attempted to enter Dixon Herbs
without a recommendation was barred from doing so. Furthermore,
the DEA CS only went to plaintiff's office after being first
turned away from Dixon Herbs and then referred to plaintiff's
office.
"In response, plaintiff argues that the visits to his office
bore all the traditional hallmarks of an investigation. For example,
plaintiff notes that when the CI was in the medical office, an
agent was outside conducting surveillance. Furthermore, although
a covert transmitter and monitoring device was not used, it was
at least considered. Additionally, the CI was searched before
and after the office visit, the police report described the incident
as a 'controlled buy of a marijuana prescription,' and recorded
funds were used.
"While there may have been other reasons for the defendants'
meticulous care in procuring a marijuana recommendation from
plaintiff and preserving an ostensible chain of custody, there
is at least a genuine dispute that defendants were investigating
plaintiff. This is true in spite of the declaration of Dennis
Hale, the federal case agent, which states that there has been
no investigation of plaintiff. The intent to inhibit speech,
like the existence of a conspiracy, can be demonstrated here
through direct or circumstantial evidence, and here, the circumstance
at least permit the inference that plaintiff was under investigation
for his speech concerning medical marijuana ...
"This remains a factual dispute even if, as the federal
defendants argue, they had not heard of Dr. Denney until a man
at Dixon Herbs referred the CS to plaintiff's office. Although
under such circumstances it appears fairly clear that Dr. Denney
was not the target of the investigation when it began, this does
not foreclose the possibility that the investigation expanded
to include him once the CS was referred by Dixon Herbs to plaintiff's
office. What matters for purposes of making out a First Amendment
violation is that the officials possessed a retaliatory animus
at the time the CS and undercover agent visited plaintiff's office
...
"Plaintiff has identified the specific defendants allegedly
involved, the nature and time of the alleged investigative activities
(sending a CS on Sept. 21, 2005 and an undercover agent on Nov.
9, 2005) and the manner in which plaintiff was affected. This
is a sufficient factual allegation from which a fact-finder could
infer the existence of a conspiracy.
"Second, defendants argue that plaintiff has not proven
that a physician of ordinary firmness would be deterred from
speaking about medical marijuana in light of two undercover visits.
Defendants assert that 'the physician has nothing to fear so
long as the physician is... not running a script mill but engaging
in the practice of medicine.'
"This turns the holding of Conant on its head. Defendants'
argument, if carried to its logical conclusion, would mean that
the injunction in Conant was unnecessary. Because a physician's
recommendation of medical marijuana to a patient is not illegal,
they should also have nothing to fear from an investigation.
The problem, however, is that a physician of ordinary firmness
who was only engaging in lawful speech concerning medical marijuana
could, in fact, be chilled by a federal investigation. As Judge
Kozinski noted in his concurrence in Conant, 'Physicians are
particularly easily deterred by the threat of governmental investigation
and/or sanction from engaging in conduct that is entirely lawful
and medically appropriate,' in part because an investigation
may harm a physician's reputation. Here, the question of whether
or not a physician of ordinary firmness would be chilled by two
undercover visits is, at the least, an issue on which reasonable
minds could disagree.
"Third, defendants argue
that the element of causation is lacking. Plaintiff must plead
and prove that the challenged investigative activities would
not have been undertaken but for the defendants' retaliatory
animus... Defendants maintain that they would have sent the undercover
visitors to plaintiff's office even without the alleged retaliatory
motive... Defendants argue that there is no chain of causation
to connect the alleged unconstitutional motive with the undercover
visits.
"Plaintiff responds that there were other methods of investigation
available that would not have abridged plaintiff's First Amendment
rights. For example, plaintiff maintains that defendants could
have forged a medical marijuana recommendation, just as law enforcement
creates false identity documents for undercover agents. Alternately,
plaintiff suggests that law enforcement could have openly enlisted
plaintiff's assistance without fraud or deception."
Karlton questioned the efficacy
of these options. A forged recommendation, he noted, "could
be exposed by a confirmation phone call to Dr. Denney's office,"
And asking for Denney's help "might have compromised the
secrecy of the investigation." Still, Karlton went on, Denney
has a right to "develop an evidentiary basis to support
his claim." In other words, he has a right to depose the
agents and read their files relevant to their visiting his office.
In order to get an injunction preventing the government from
sending undercover agents into his practice in the future, "plaintiff
must prove (1) injury in fact, (2) causation, and (3) redressability."
Denney alleges that the undercover visit harmed him in two ways,
Karlton wrote:
"Made him fearful of discussing
the medical benefits of marijuana with his patients [and] made
him suspicious of his patients, some of whom he has turned away
for fear that they were using false identification provided by
law enforcement. Defendants respond that whereas criminal prosecution
can threaten liberty, mere investigations cannot. Furthermore,
defendants argue that suspicion and anxiety do not constitute
cognizable injury ... The court disagrees. If harm to a doctor's
ability to 'speak frankly and openly to patients,' was not a
cognizable injury, the Conant injunction would never have issued
in the first instance."
As for causation,
"Dr. Denney's suspicions
were roused only upon the defendants' undercover visits and his
discovery of the same. These visits were the but-for cause of
his self-censorship, and an injunction would clearly restore
Dr. Denney's confidence in his relationships with his patients."
"Defendants argue that emotional distress caused by an investigation
is not irreparable harm ... but the harms of an investigation
were sufficiently irreparable to justify the injunction upheld
in Conant. Damages would be an inadequate remedy because they
could not reassure Dr. Denney that similar investigative tactics
will not be used in the future."
Dr. Denney says that's fine
with him. His goals are political, not financial. He's seeking
to defend the Bill of Rights.
Fred Gardner edits O'Shaughnessy's, the journal
of cannabis in clinical practice. He can be reached at fred@plebesite.com
|
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