Medical Marijuana discrimination

My question involves civil rights in the State of: Montana

on February 17th 2009 I went to work at 10am for a split shift from 10am-1pm and then back again at 5pm-9pm. At around noon the same day I delivered some food to the police station, not uncommon. When I returned to work after delivering the food my manager asked me if the dispatch office (police department) had called me. I said no to her and asked her if I forgot some food or something and wondered why they would be calling me. My manager told me that I did not forget food and that the police department wanted me to go back. I asked her why I had to go back and she said that the police department didn't say why I had to go back. I reluctantly got back in my car and started to drive to the police department. On the way there, about 200 feet away from my place of employment I was pulled over. When the officer came to my window I asked him what the problem was and why I was being pulled over. The officer says "Here's the problem, you just delivered a bag of food to the police department and it smells like you delivered a bag of weed instead." I apologized for it and he says "So here's the deal I know you either have it on you or it's in the car somewhere." I said to him "Yes, I do have some marijuana on me and a pipe but I also have my medical card too." The officer took my card and says "Oh, well this changes everything." he made sure I was sober and sent me back to work. I finished out my first shift and went home. At 5pm I went back for my second shift. I went to work doing what needed to be done and at 6:30pm the 2 managers sat me down and fired me. I laughed thinking they were joking and asked them what they really needed. They told me that they were firing me and that I had to leave. I asked them for a reason as to why I was being fired and the managers told me that it was nothing personal that it was just a business matter. I asked again for a reason as to why I got fired and got no response. I left pretty upset and went home to cool down. The next day I went down to the police department to talk to the chief of police and to express my concern about how things were handled the previous day. The chief of police was the one who informed as to why I got fired from my job. He told me that the dispatcher who took the food from me took it upon herself to call my place of employment and tell them that I was a danger to society for smoking medical marijuana. My problem is with the police department. I felt after the medical marijuana law being in effect for several years now things could have been handled differently. My manager had given the dispatcher my personal cell phone number. A simple phone call would have completely avoided me being fired. I know my employer doesn't have to allow it IN the workplace (but he did know several months before that I had my medical card) The police department was mad that they could not get me for any illegal activity so they hit me in the next best spot, my job. I am disabled I have full medical backing to prove I use marijuana medicinally. I am posting here basically to see if you guys feel that I was wronged and if legal action could be possible.

Under law the dispatcher who called my work and told them I was a danger to society broke the state confidentiality laws and has a punishment of 6months and or 1,000 dollar fine. I went to local law enforcement to see about pursuing criminal charges but they told me that they wouldn't even investigate it and told me to leave.

I am disabled and I cannot do just any work, while it wasn't the best paying job, it was one of the few jobs that I could do.



50-46-201. Medical use of marijuana -- legal protections -- limits on amount --
presumption of medical use. (1) A qualifying patient or caregiver who possesses a registry
identification card issued pursuant to 50-46-103 may not be arrested, prosecuted, or penalized in
any manner or be denied any right or privilege, including but not limited to civil penalty or
disciplinary action by a professional licensing board or the department of labor and industry, for
the medical use of marijuana or for assisting in the medical use of marijuana if the qualifying
patient or caregiver possesses marijuana not in excess of the amounts allowed in subsection (2).


Department of Public Health & Human Services - Montana Medical Marijuana Program click on Title 50, Chapter 46, Medical Marijuana Act

I am not licensed to practice law in Montana, so please take this as just a starting point for you, with your goal being to consult a Montana attorney who is competent to handle tort claims against government bodies.

I cannot judge the facts here of course as I only have your side of it. Taking everything you said as true, at least two possible legal theories come to mind:

1. Slander, which is an oral statement which is false and which damages someone's reputation. Specifically, I am thinking of the "danger to society" part.

2. Wrongful and intentional interference with business relations. According to you it sounds like the dispatcher's object was to have your employment terminated, which in fact happened.

I recommend that you consult an attorney in Montana absolutely as quickly as possible. In particular, the slander claim may need some immediate attention. In some states there are "retraction" statutes where the injured person has to demand a retraction with in a very limited period of time in order to recover certain types of damages. I have no idea whether Montana has such a statute. A competent attorney can tell you.

I am not saying that you have a great case, by the way. Although I do not practice law in Montana I have been there quite a few times and I know people who live there. I have the impression that finding a jury sympathetic to a person who smokes marijuana, medical or not, might be difficult. To be totally candid, I do not really approve of the medical marijuana exception myself. I am sceptical of the medical "benefits" and I think it is crazy that we have two separate criminal systems: federal, where it remains illegal, and state, where under limited circumstances, it is legal. I believe it should either be flat out legal or illegal, not both. However, my personal views don't enter into this. I only note them to give you a sense of the reactions I think many juries might have to this type of case. I may be completely wrong about that, and that is another reason why you needed to be guided by an attorney.

As for any criminal investigation, I am not surprised that you got the brush off from the police department. Even otherwise very good local police departments are usually poor when it comes to internal affairs investigations. If you want to pursue that, the option I would try would be to report it to the State Police - in the capital of Montana, not the town where you live.

I agree wholeheartedly with the sentiments expressed re: medical pot. My feeling is it is used much like folks collecting "disability" who are, in fact, perfectly able bodied and found something like dyslexia to get paid for. As a mother of a completely non verbal special needs child I hasten to add I do not collect "benefits" for him, refusing to be part of that entire system. However, like semblance, my opinion is immaterial aside from the fact that it may mirror how a jury would feel.

My legal opinion is that it may be actionable under ADA. If he can prove he was fired for the pot, it may be possible (MAY) to convince a jury it would be no different than say something who needed extra bathroom breaks (like the story that was in the news recently about the cancer patient who was denied extra bathroom breaks). There may be some remote way to us the ADA to your benefit.

Also, the right to work/ at will issue may be relevant. To my recollection, Montana is not a right to work state, but is rather an at will state which means you can be hired or you can quit at any time without reason--with the notable exception of discrimination, of course.

GentleGrace raises a good point about employment discrimination. I did not address that because, as you stated, your problem was with the police department.

It is possible, however, that there may be an employment discrimination claim you could bring against your employer. It might be legally rather complicated because the Americans with Disabilities Act is a federal law and, federally, marijuana consumption is not an acceptable treatement and is in fact criminal activity. There may be some Montana state disabilites law that would trump the whole issue in your favor.

The employment discrimintion angle is an additional issue which you should consult a Montana attorney about.

Montana is a right to work state. I ran a restaurant in my town so that's the only reason I know it is.


50-46-205. Limitations of Medical Marijuana Act. (1) This chapter does not permit:
(b) an employer to accommodate the medical use of marijuana in any workplace.

now I understand the odor to be an accommodation and while my employer knew about it, he still doesn't have to accommodate me in anyway to use it, this is why I targeted the police. But the police told my work that the food I delivered smelled like it. then they later changed their story to the bags the food came in, and finally it was just me that smelled.

So the state police are the highway patrol, they are the ones that investigate the police. Do you recommend I still call my capitol for that?

There is no question that I was fired for the pot. My employer told the state of Montana unemployment insurance that I was fired because of customer complaints (the police) of me smelling like marijuana

Is it your position that it is your right to show up smelling like pot (Or have the food, or bags, etc smelling like it)?

You may have a right to use the substance but expecting other people to be willing to be exposed to the smell and/or risk really isn't reasonable.

As I have said, I do not necessarily have the impression that you would have a strong case or a sympathetic jury. I am putting in this post because I have the impression that you are not following the legal analysis.

First, I do not want to make too much of the possibility of an employment discrimination claim, but you are missing the point. Regardless of whether employers in Montana may generally fire anyone at will or not, if an unlawful reason is used, it is still illegal. For example, if you are an employer and you fire an African-American employee because she or he is impolite to customers, that is perfectly legal. On the other hand, if you fire an African- American employee because they are African-American and some of your customers don't like being waited on by an African-American, that is illegal. The way you describe the situation it is not a question of accommodating medical marijuana use in the workplace. You say that did not happen. The legal question presented is whether under Montana law you have a medical condition which is directly related to your employer's decision to fire you. To be clear, I am not saying you have a case, or if you do that it is a good case. I am saying that it makes sense to talk to a Montana lawyer competent with employment law issues as well as slander and issues related to business relations.

Second, as to the local police, regardless of who does the investigation - the highway patrol or some other branch of the state governement - if you think you have sufficient evidence to warrant a complaint I would at least try reporting it through the state capitol first. If you start local, there is too much of a possibility of the local investigator trying to just bury it locally. If someone at the state capitol takes you seriously and gives a directive down the chain of command for an investigation, it would be much more difficult for the local investigator to sweep it under the rug. Mind you, I have no idea of the strength of your evidence or even whether the central state police office will take a complaint of this nature. I am merely saying that is the logical place to start absent any other information. This is, again, something a competent Montana attorney can give you some advice about.

Third, I agree with GentleGrace that if in fact you smelled like marijuana delivering food to the police station that is not acceptable behavior. However, I have had many friends, relatives, and acquaintances over the years who regularly smoke marijuana. I neither approve nor partake, but absent really heavy, extreme use of marijuana I very much doubt that the "I can smell it on 'em" story could be real. (For the record, I have a sensitive sense of smell, never having smoked either pot, regular tobacco, or anything else.)

More importantly, from the way you describe the incident the "smells like pot" story may only be a pretext. I understood that the dispatcher's statement to your employer that led to your termination was not based on "smell". Instead she said you were a danger to society because you smoke medical marijuana. In terms of your potential claims against the police, the question is, did the police take unlawful action which caused you to lose your job? This is what is called a fact question. If there is a lawsuit ultimately the "trier of fact" - usually a jury - decides who is telling the truth. Again, I am not saying you win that contest at trial. I am only saying that the mere fact that after you were fired your employer (or anyoone else) says "he smelled like pot" does not mean that their actions cannot be challenged. If, as you say, there is evidence that there was a different reason behind the firing, then the jury is free to reject the "smelled like pot" justification.

I don't think we can help you any further with this kind of question. As I view it this site is primarily about helping people understand the potential legal issues and in appropriate cases directing them on to local attorneys. If you want to pursue this further you need to talk to a local attorney.

the reason I even thought about criminal charges was from Roy Kemp the director for the state department of public health and human services. I told him my situation and he told me to go down and file criminal charges right away, I had not even thought of that. I see where you are coming from, I came here for advice and I got it. I appreciate the help and I am not trying to sound ungrateful. I know I was wronged and I am going to prove it.

my next question, how do I find out who can accept a lawsuit for the city? Who do I ask? I asked the district court clerks but they weren't sure.

The clerks aren't going to tell you how to sue the city. And,.lawsuits are not 'accepted', they are filed, served, etc.

Suing someone who is covered, among other things, by Section 1983, Title 42, is a complex endeavor, one you cannot do alone since the city has at their disposal their own attorney (s). Ask around for attorneys experienced in Section 1983 as well as other Civil Rights laws. It may be hard to find someone willing to sue the city (especially in a small town) but it can be done.

This really isn't something you should try yourself---I know I wouldn't try it, even with my formal legal education.

Hopefully the other poster on this thread will have time to respond. His expertise is far beyond my own.

Until then, good luck..