Arizona Medical Marijuana Lawsuit Filed by ACLU to Help Boy Receive Plant Extracts

The American Civil Liberties Union filed a lawsuit on Monday in Maricopa County Superior Court to resolve the issue of medical-marijuana extracts for a seizure-plagued boy.

Saying an oil from a low-THC strain of marijuana has dramatically reduced the seizures suffered by 5-year-old Zander Welton, the ACLU and the Weltons are asking the court to declare that extracts are legal under the Arizona Medical Marijuana Act and block County Attorney Bill Montgomery from taking legal action against the family based on his "incorrect" interpretation of the law.

See also: - Medical-Pot Edibles Are Legal, but Prosecutors and Cops Aren't Backing Off - Phoenix Police to Medical-Pot Community: "Medibles" Will Be Tested for Extracts We mentioned the Welton case in our article that covered the crux of the debate behind the lawsuit -- whether concentrates and extracts made from marijuana are legal for qualified medical users, based on the voter-approved 2010 law. The ACLU's lawsuit refers to a follow-up article we published in Valley Fever that contains statements from a Phoenix police spokesman, who told us in an email that police -- based on Montgomery's stance -- believe that extracts including hashish, oil, tincture and even cannabutter are considered "narcotics" under Arizona law, not covered by the AMMA.

As our articles explained, the 2010 law states that qualified users and dispensaries can possess marijuana and "any preparation or mixture thereof." Sounds straightforward, right?

Not if you're Bill Montgomery, a Republican and social conservative who's been fighting hard to thwart the wishes of voters. After advising the Board of Supervisors to deny zoning information to would-be dispensaries, Montgomery invited the court battle he wanted. He was sued by the White Mountain Health Center, which wants to put a shop in Sun City. That case is slated for oral arguments before the Arizona Court of Appeals on November 27.

But Montgomery's decided to take some out-of-court action against the law he hates, too. He's decided -- as have many other prosecutors around the state, admittedly -- that some preparations of marijuana aren't covered by the law. For reasons unclear to us non-lawyers, he claims a decades-old, unscientific definition of "cannabis" in the law makes extracts of marijuana a felony distinct from the 2010 definition of "usable marijuana."

We've talked to at least one medical-marijuana cardholder who claims he's being prosecuted for possessing a single piece of marijuana-infused candy -- more on him in a future blog post.

Zander Welton's problems are even more serious. In spite of two brain surgeries, Zander continued to have repeated seizures that impaired his ability to walk or sit up. In August, after watching Sanjay Gupta's CNN special, "Weed," the Weltons began to consider medical marijuana. They were somewhat concerned about what their church would think, but a Mormon bishop gave their choice his blessing, the lawsuit states:

Jacob and Jennifer also consulted with a family friend who is a Bishop in the Mormon Church to which they belong. The Bishop told them that the church would approve of their giving Zander marijuana for medical purposes. The Bishop cited The Book of Mormon, Doctrine and Covenants Section 89: 1 0 - 11 : "And again, verily I say unto you, all wholesome herbs God hath ordained for the constitution, nature, and use of man- Every herb in the season thereof, and every fruit in the season thereof; all these to be used with prudence and thanksgiving."

They obtained approval from the Arizona Department of Health Services, which issues medical-marijuana cards. Then they began Zander on a treatment regiment that included an oil prepared from a marijuana strain that's very high in cannabidiol, but low in THC, the chemical that gives users a buzz.

The results have been dramatic, the lawsuit says. Zander's development has been progressing in all areas, and he's only had two seizures since the treatment began.

In late August, though, DHS Director Will Humble published a warning against possessing or making concentrates, citing the concerns of law enforcement. The Weltons reluctantly stopped using their special oil due to fear of prosecution. They put Zander on a diet that includes lots of dried plant material in his pudding or applesauce. But that's inconvenient and may not work as well, the suit says: "Eating a dried plant is not palatable for anyone and is particularly hard for Zander given his physical limitations. He frequently has difficulty eating as much plant material as is necessary for this new treatment regime..."

Montgomery might be happy to believe he's got another shot at derailing the state law based on the federal prohibition of marijuana, which the feds don't currently care about in states with laws like Arizona's. But this case could also cost him a few points in public support, because people might believe he's interpreting the law for his own political gain at the expense of a kid. That's certainly what the ACLU believes.

"Why go out of your way to twist the meaning of the law so you can deny a sick child his medicine?" asks Emma Andersson, staff attorney with the ACLU's Criminal Law Reform Project in New York City. Montgomery has "an ideological interest in this, and he's putting it before the interests of patients, and putting it before respect for the law."

Click here to read the ACLU's lawsuit on behalf of Zander Welton.

The New York Times published an article about the lawsuit this morning with a picture of the Weltons.

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Ray Stern has worked as a newspaper reporter in Arizona for more than two decades. He's won numerous awards for his reporting, including the Arizona Press Club's Don Bolles Award for Investigative Journalism.