Beruflich Dokumente
Kultur Dokumente
DISTRICT OF KANSAS
SHONA BANDA,
Plaintiff
v.
THE STATE OF KANSAS; KANSAS
DEPARTMENT FOR CHILDREN AND
FAMILIES; PHYLLIS GILMORE, in her
capacity as Secretary of the Kansas
Department for Children and Families; SAM
BROWNBACK, in his capacity as Governor
of the State of Kansas; GARDEN CITY
POLICE DEPARTMENT; JAMES R.
HAWKINS, in his capacity as Chief of the
Garden City, KS police department; TYLER
STUBENHOFFER; GARDEN CITY USD
437; and DOES 1 to 10,
Defendants
violations of the United States Constitution and the laws of the United States.
This Court has federal question jurisdiction (28 U.S.C. 1331, 1343(a), 2201 and
2202). Venue is proper because this is the district in which all of the events giving
rise to the Plaintiffs claims occurred (28 U.S.C. 1391[b]).
PARTIES
2.
11.
Plaintiff does not know the true names and capacities of the
year-old son (MINOR CHILD). BANDA suffers from the painful symptoms
and effects of Crohns Disease. Her condition was debilitating and rendered her
unable to participate in normal life activities. BANDA has had seventeen (17)
surgeries related to her conditions over a period of eight (8) years. Various
prescription medications and aides were ineffective in relieving the symptoms and
pain or had such strong side-effects that she was rendered immobile.
14.
licensed physicians, BANDA was using oil derived from the cannabis plant to treat
her Crohns Disease. Upon treating the condition with cannabis oil, the
debilitating symptoms that had rendered her unable to work and essentially
confined to her home were significantly relieved. When BANDA has been unable
to obtain and use cannabis to treat her condition, the debilitating pain and
symptoms return again rendering her unable to function normally and prevent her
from participating in many life activities.
15.
medications often are, aware of her use of cannabis to treat debilitating Crohns
Disease. Over time, BANDA had educated her children about cannabis and
cautioned her 11-year-old that it is a medication she uses.
16.
and belief alleges that on March 24, 2015 a classroom counseling program the
subject of which was gateway drugs (i.e. alcohol, tobacco and cannabis) was
presented by Defendant STUBENHOFFER along with a DOE Defendant police
officer to the public school class of MINOR CHILD. During the presentation,
MINOR CHILD objected to inaccurate statements made about cannabis by
STUBENHOFFER. MINOR CHILD informed STUBENHOFFER, who was
using the term marijuana, that the proper term is cannabis and that cannabis is a
medication used by his mother for Crohns disease. Thereafter, the MINOR
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CHILD was sent to school administrators who then questioned him outside the
presence of BANDA and his father.
17.
and belief alleges that following their questioning of MINOR CHILD, school
personnel contacted the GCPD to report alleged cannabis use by Plaintiff
BANDA. Thereafter, officers from the GCPD went to the public school, took
custody of MINOR CHILD and questioned him without either of his parents being
notified or present. Thereafter, the GCPD and DEPARTMENT have kept and
controlled custody of MINOR CHILD despite repeated demands that he be
returned to BANDA.
18.
her shows, officers on her property without a warrant. Officers were in the back
area and in a small garage at the rear of the property. DEPARTMENT personnel
were near the front of her house and were questioning BANDAs other child.
20.
property. Officers who were observed at the back of the property when BANDA
arrived and who had moved to the front of the property were asked why they had
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been in the back yard and garage of the property. The officers denied they had
been in the back of the property or gone into the garage.
21.
by officers was executed. BANDAs medication used to treat her Crohns Disease
was taken by officers during execution of the warrant along with property used by
BANDA to prepare medical cannabis into a form effective for alleviating the
excruciating and debilitating symptoms and effects of Crohns Disease.
22.
CHILD. The State of Kansas has taken action that has deprived BANDA of any
and all parental rights, control and custodial decision making with respect to
MINOR CHILD.
DECISIONAL LAW BACKGROUND
23.
that review of laws impacting rights deemed fundamental are analyzed using the
strict scrutiny standard of review. Washington v. Glucksberg, 521 U.S. 702, 719
(1997); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673 (1976). [I]t cannot now be
doubted that the Due Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning the care, custody, and
control of their children. Troxel v. Granville, 530 U.S. 2000, 120 S.Ct. 2054, 147
L.Ed.2d 49 (2000).
24.
fit parents fundamental right to make child rearing decisions simply because a
court disagrees with the parent or believes a better decision could be made.
Rogers v. Rogers, 2007 WI App 50, 300 Wis.2d 532, 731 N.W.2d 347 18 (citing
Troxel, 530 U.S. at 65, 72-73).
25.
established for medical cannabis patients seeking to alleviate excruciating pain and
discomfort given: (A) thirty-two (32) states and the District of Columbia have
enacted some form of cannabis legislation for patients suffering from severe illness
and disability; (B) Congress enacted section 538 of the 2015 Omnibus
Appropriations Act prohibiting the Department of Justice from using funds in a
manner inapposite to the implementation of state medical cannabis laws; (C) in
January, 2013, the National Cancer Institute, part of the federal governments
National Institutes of Health, reported cannabis reduces the size of cancerous
tumors; (D) in 2003, the United States obtained a patent titled, The Antioxidant
and Neuroprotective benefits of Cannabinoids; (E) multiple scientific studies
and reports show cannabis is the only medication effective in treating severe
childhood epilepsy; and (F) numerous scientific articles report cannabis is effective
in treating a myriad of human health ailments. Unlike in 2007 when the Raich due
process decision was handed-down by the Ninth Circuit, sufficient recognition
akin to that required by the Supreme Court in Lawrence v. Texas has been achieved
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for purposes of emerging awareness. Lawrence v. Texas, 539 U.S. 558, 578, 123
S.Ct. 2472, 156 L.Ed.2d 508 (2003); Raich v. Gonzales, 500 F.3d 850, 864-66
(2007).
FIRST CLAIM FOR RELIEF
(Violation of 42 U.S.C. 1983, 9th and 14th Amendments, Due Process)
26.
Nation's history and tradition, and implicit in the concept of ordered liberty,
such that neither liberty nor justice would exist if they were sacrificed. Raich,
supra, 500 F.3d at 865.
29.
marijuana as well as its acceptance both scientifically and socially has occurred
since the 2007 decision in Raich and includes, but is not limited to, the following:
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A.
On December 16, 2014, the President signed H.R. 83, the Omnibus
Appropriations Act of 2015, which was thereafter codified as Public
Law 113-265. Section 538 of P.L. 113-265 provides:
None of the funds made available in this Act to the Department of
Justice may be used, with respect to the States of Alabama, Alaska,
Arizona, California, Colorado, Connecticut, Delaware, District of
Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine,
Maryland, Massachusetts, Michigan, Minnesota, Mississippi,
Missouri, Montana, Nevada, New Hampshire, New Jersey, New
Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah,
Vermont, Washington, and Wisconsin, to prevent such States from
implementing their own State laws that authorize the use,
distribution, possession, or cultivation of medical marijuana.
B.
C.
E.
F.
G.
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H.
30.
value of marijuana, KANSAS continues to impose the KCSA on its citizen and
prohibits the use, possession, distribution, cultivation, transportation or storage of
any cannabis. Based on these prohibitions, on June 5, 2015, the State of Kansas
charged BANDA with violating the KCSA. The felony charges filed against
BANDA subject her, if found guilty, to up to thirty (30) years in state prison.
31.
subjecting her to up to thirty (30) years in prison for using a plant that has been
shown in studies to significantly reduce the symptoms and pain associated with
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Crohns Disease when no other prescription drug or remedy has been effective in
doing so objectively shocks the conscience of any reasonable person.
32.
right set forth above, the KCSA violates Plaintiffs substantive due process rights
protected through the Fourteenth Amendment to the Constitution and rights
provided for through the Ninth Amendment to the Constitution.
34.
law and the issues raised by her in this claim relate solely to her Fourteenth
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Amendment substantive due process rights as applied to actions taken against her
under state law.
SECOND CLAIM FOR RELIEF
(Violation of 42 U.S.C. 1983, 14th Amendment, Due Process)
37.
At no time did BANDA authorize the public school that had been
granted only limited and temporary custody and control over MINOR CHILD to
transfer MINOR CHILD to the GCPD. The transfer of MINOR CHILD was
outside the scope of the authority granted to the public school which is and was a
public entity and part of Defendant KANSAS.
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47.
control MINOR CHILD as well as the custody and care of him, authorize the
GCPD, KANSAS or DEPARTMENT to take custody and control of MINOR
CHILD.
48.
MINOR CHILDs father granting the Defendants the right to seize MINOR
CHILD, to control the custody and care of MINOR CHILD and thereafter
question him without the consent of BANDA.
50.
CHILD or any other person such that a properly executed seizure warrant or
custody order could not have been obtained by the Defendants prior to seizing the
MINOR CHILD and taking control of him.
52.
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MINOR CHILD regarding the health condition from which she suffers and the
medication used by her to treat that condition would be kept private from and
outside the scope of the temporary custody and control over MINOR CHILD
granted by her to the public school, which was an is a subdivision or part of
Defendant KANSAS.
54.
rights, the Plaintiff has suffered damages in an amount to be proven at time of trial.
FOURTH CLAIM FOR RELIEF
(Declaratory Relief)
56.
Defendants in that the Defendants have taken action against the Plaintiff depriving
16
The Plaintiff asserts that she has certain fundamental rights as set
forth in this Complaint and the Defendants contend she has no such rights.
59.
17
62.
cannabis used by the Plaintiff when cannabis is the only medication that works to
effectively treat and alleviate the painful and debilitating Crohns Disease from
which she suffers constitutes irreparable harm.
64.
result if the KCSA were to include provisions allowing the medicinal use of
marijuana by the Plaintiff in light of exceptions already provided for other
prescription drugs.
65.
and the likelihood of her success on the merits in this case, injunctive relief
prohibiting the Defendants from enforcing the KCSA against Plaintiff is necessary
and appropriate.
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to use cannabis recommended by her physician for medicinal purposes to treat the
painful and debilitating conditions related to Crohns Disease;
2.
to make decisions concerning the care, custody, and control of MINOR CHILD
that cannot be abrogated based solely on her possession and use of cannabis
recommended by her physician to treat the painful and debilitating conditions
related to the Crohns Disease from which she suffers;
3.
enforce the KCSA against Plaintiff to deprive her of custody of MINOR CHILD;
4.
enforce the KCSA against Plaintiff based solely on her use, possession,
preparation, storage or transportation of cannabis used solely to treat pain and
symptoms of Crohns Disease from which she suffers;
5.
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6.
7.
For any other relief the court deems appropriate in this case.
DATED:____________
___________________________
Matthew S. Pappas (CSBN: 171860)
Pro hac vice application pending
Co-Counsel
1719 E. Broadway
Long Beach, CA 90802
(949) 382-1485
Fax: (949) 382-1512
matt.pappas@mattpappaslaw.com
___________________________
Sarah G. Swain (KSBN: 20417)
Local Counsel and Co-Counsel
2311 Wakarusa Dr., Suite J
Lawrence, KS 66047
(785) 842-2787
sarah@thesswainlawoffice.com
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