Shona Banda, shown here after she was booked into jail and then released after posting bond in June, has sued state and Garden City officials, claiming she has a constitutional right to use cannabis to treat her Crohn’s disease. Credit James Dobson / Garden City Telegram
By Dan Margolies •
The Garden City, Kansas, mother who lost custody of her 11-year-old son over her use of cannabis oil says she wants to hold state officials accountable “so this doesn’t happen to people any longer.”
Shona Banda, who sued state agencies and officials late last week, is representing herself in the action, which asks the court to restore custody of her son, declare that she has a “fundamental right” to use cannabis oil to treat her Crohn’s disease and award unspecified damages.
“We need to restore actual liberties in this country,” Banda said in a telephone interview with Heartland Health Monitor. “The powers that be have gained way too much control when they think that they can do these kinds of things even with your children.”
Banda posted a draft of her lawsuit online as long ago as September but later said its filing had been delayed by the inability of her attorneys, one in Lawrence, Kansas, and the other in California, to agree on a mutual schedule.
In the lawsuit filed last week, however, she is acting on her own behalf. Asked what had become of her attorneys, Banda said the California attorney had a medical emergency “and we were coming on the statute of limitations to file the case. So I had to do what I had to do in order to make this happen.”
The suit was filed a year to the day after Garden City police raided her home and seized marijuana, cannabis oil and drug-related equipment after her 11-year-old son spoke up about her use of cannabis at a school anti-drug presentation.
The Kansas Department for Children and Families subsequently took custody of her son, saying the home environment was not safe for him, and the Finney County district attorney filed drug-related criminal charges against her. The charges carry a maximum punishment of 30 years in prison.
Banda said she would represent herself in court until she could find “adequate representation.”
Her 20-page lawsuit, filed in federal court, names as defendants the state of Kansas; the Kansas Department for Children and Families; DCF Secretary Phyllis Gilmore; Gov. Sam Brownback; the Garden City Police Department and its police chief, James R. Hawkins; the Garden City School District; and Tyler Stubenhoffer, an employee of the school district.
The suit alleges that the defendants violated Banda’s constitutional rights under the 9th and 14th amendments and cites an “emerging awareness” of the medical benefits of marijuana and its increasing societal acceptance. However, legal experts say there’s little case law supporting a constitutional right to medical marijuana.
Under Kansas law, possession of any amount of marijuana is punishable by up to a year in jail and a $1,000 fine. A second conviction is punishable by up to 3 ½ years in prison and a $100,000 fine.
Theresa Freed, a spokeswoman for the Department for Children and Families, could not be reached for comment on Monday. But asked in September about Banda’s then-threatened lawsuit, she said that the department’s mission is to “protect children, promote healthy families and encourage personal responsibility.”
“Our social workers are trained to assess the safety of a home and make an appropriate recommendation to the court,” Freed said. “Marijuana is an illegal substance in the state of Kansas. It can have both direct and indirect detrimental consequences on families.”
Banda said her son is in the custody of his father and she has visitation rights. She said, however, that she and the father are getting divorced “and I’m fighting for sole custody of my son.”
Banda has another son, 19, who lives with her and whom she says “is working and trying to do what he can to be an adult.”
She acknowledged that the legal odyssey she’s endured over the last year has been “very difficult” but said her younger son was “doing OK.”
“But it’s been very difficult on our family as a whole, I will say that,” she said.
Banda has been a highly visible advocate of medical marijuana and self-published a book about her use of cannabis oil to treat her Crohn’s, an inflammatory bowel disease that can cause severe abdominal pain and other symptoms.
Her lawsuit says she has undergone 17 surgeries over eight years. It says that the cannabis oil she uses to treat her condition had “significantly relieved” debilitating symptoms that had prevented her from working and confined her to her home.
Dan Margolies, editor of the Heartland Health Monitor team, is based at KCUR. You can reach him on Twitter @DanMargolies.