Vol. 24 No. 22- Investigating a “Recommendation” for Medical Marijuana


September 1, 2009

On August 26, 2009, the California Court of Appeal concluded, in Bearman v. California Medical Board et al, 2009 DAR 1417, that, if reasonable suspicion exists that one might be abusing the Compassionate Use Act (CUA), agencies and personnel “should suffer no tort liability for attempting to do its job…,” when investigating suspected violations.


In March, 2001, Dr. David Bearman gave a patient (Nathan) a letter recommending use of marijuana for medical purposes to treat attention deficit disorder (ADD) and migraine headaches.  Nathan was stopped by a park ranger with marijuana and two glass pipes and produced the doctor’s letter.  Thinking that the doctor might have been violating the CUA, since it doesn’t appear suffering from ADD is a “serious illness” as referenced in the CUA, the ranger reported the matter to the California Medical Board for investigation.  When Nathan refused the Board’s request to release his medical records, so they could ascertain if the recommendation was appropriate, the Board served an administrative subpoena on the doctor for the records.

The doctor refused to comply and the Superior Court granted the Board’s petition to compel production, noting that appellant’s letter “recommended marijuana for the treatment of attention deficit disorder, an illness not mentioned in the CUA.”  The Court of Appeal reversed, holding that the “Board failed to make a good cause showing for the production of medical records.”

On April 6, 2006, Bearman sued for damages based on a claimed violation of the Federal Civil Rights Act and named the Board, its Executive Director and a Supervisor.  He claimed that the Board “brought ‘baseless subpoenas [and] unfounded administrative and disciplinary proceedings’ to frighten and intimidate doctors who recommend the medical use of marijuana for patients.”

Qualified Immunity from Civil Liability

It was conceded by the appellant that the Board and its Executive Officer had absolute immunity from civil liability and the case against them was dismissed.  There was an issue, however, as to whether or not other named defendants had the protection of qualified immunity.  The court said that, “unlike absolute immunity, which shields the defendant no matter how egregious or intentional the conduct, qualified immunity shields only that conduct of a governmental official which he or she reasonably believed to be lawful in light of the clearly established law and facts of the case.”

In order to determine if one has qualified immunity, “we undertake a two-step analysis: (1) Was the law governing the official’s conduct clearly established? (2) Under that law, could a reasonable officer have believed the conduct was lawful?  To avoid the qualified immunity defense, appellant must show that supervisor’s conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known.”

“Notwithstanding the passage of the CUA, it remains a federal crime to possess marijuana.  There is no federal exemption for medical marijuana.  This serves a basis to say that any State law purporting to ‘legalize’ marijuana, even for medical purposes, is not ‘clearly established’.”  Therefore, qualified immunity was available for the investigators.

Duty to Investigate Possible Violation

The court held that the “Board is statutorily required to investigate complaints from the public ‘that a physician … may be guilty of unprofessional conduct … which includes ‘prescribing … dangerous drugs … without a good faith prior examination and medical indication therefore ….”  Furthermore, said the court, “Board investigators have the authority of peace officers while engaged in exercising powers granted or performing the duties imposed upon them … in investigating the laws ….”

In fact, the court asked, “what should the California Medical Board (Board) do if it reasonably believes there may be an abuse of the CUA?  Surely, it has the power and right to investigate.”  The court also noted that although it was rendering no opinion as to whether or not the CUA was abused by recommending marijuana for ADD, “there is room for abuse of the CUA in this emerging area of the law.  Here the Board and its agents were trying to follow the statutory mandate.  They have no tort liability for doing so.”

At the time of the ranger’s contact with Nathan, “it was also unknown how detailed the physician letter had to be without waiving the privacy rights of the patient.”  Subsequently, the court points out, the legislature amended the Health and Safety Code by enacting section 11362.71 which established “a program for state-issued identification cards to patients who qualify for the medical use of marijuana.”  One of the purposes of those cards, is to enable law enforcement personnel to know who has been determined to be a “qualified patient” authorized, under California law, to use and possess marijuana for medical purposes.


The Court of Appeal clearly states that, based upon reasonable suspicion, law enforcement (and a regulating agency) has the duty to investigate possible violations of the CUA.  As long as the belief is reasonable, and justification can be articulated, neither the government nor its agents will be subject to tort liability or money damages for doing its job.  This holding should apply to investigations of any and all aspects of the CUA, including the operation of dispensaries, cooperatives or collectives, to ensure compliance with the legislation.

This area of the law continues to be subject to challenge and law enforcement officers should always assume that they will be required to justify the actions they take.  As such it is important that appropriate legal advice be sought, especially in unsettled areas of the law.

As always, if you wish to discuss this in greater detail, please feel free to contact me at (714) 446­1400 or via e-mail at mjm@jones­mayer.com.