Pubdate: Thu, 24 May 2001
Source: Arcata Eye (US CA)
Copyright: 2001, Arcata Eye
Contact:  http://www.arcataeye.com/
Details: http://www.mapinc.org/media/1210
Author: Daniel Mintz, Eye Reporter
Bookmark: http://www.mapinc.org/find?115 (Cannabis - California)
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

CANNABIS CLINICS WITHER AFTER SUPREME COURT DECISION

A U.S. Supreme Court decision that maintains the status quo of marijuana 
law has nevertheless netted an immediate and significant effect - the 
county's two medical cannabis centers have closed in response.

That's because the unanimous high court ruling that came down Monday, May 
14 sets a legal precedent for applying Federal law to medical marijuana 
distribution. The Federal Controlled Substances Act bars all cultivation 
and distribution of marijuana, and puts cannabis in the same category as 
heroin, PCP and LSD - it's defined as a dangerous drug with high potential 
for abuse and no medical value.

Affirmation of the law's authority has opened the door to federal 
prosecution of medical marijuana producers, and has local growers talking 
about more underground approaches to cultivating cannabis for medical 
patients. And the county's medical cannabis centers, both located along the 
same street in Arcata, are shuttered.

Proposition 215, California's medical marijuana law, is untouched by the 
ruling and possession of cannabis by medical patients is still legal. 
However, Greg Allen, president of the Humboldt Medical Cannabis Center 
(HMCC), said that although Federal law doesn't address possession, its ban 
on distribution will challenge patients' ability to get their medicine.

"At this point, it seems any grow much larger than an individual patient 
would use will result in confiscation and perhaps prosecution," Allen said. 
"Patients still don't have access to the medicine they have the right to 
have, and nobody can do much to help them."

It may not be the feds that medical marijuana cultivators need to be most 
wary of, Allen continued. "What I see as more significant is that local law 
enforcement has been very emboldened by the Supreme Court passing on this 
case. It will be interesting to see what they do, but it seems that 
patients growing for themselves is not inconsistent with federal law at 
this point."

High court: No medical defense

The essence of the ruling can be summed up in a sentence - the court has 
affirmed that medical necessity cannot be used as a defense against federal 
anti-distribution laws - but the events that led up to it followed a 
twisting path.

In early 1998, the U.S. Justice Department sued the Oakland Cannabis 
Cooperative, a medical marijuana distribution center, to block its 
activities because they violated the Controlled Substances Act. The 
District Court granted a preliminary injunction to stop the co-op from 
distributing to patients.

The co-op continued doing it, though, asserting that its activities were 
medically necessary and served the public interest. The co-op and its 
director, physician Jeff Jones, were found to be in contempt of court and 
U.S. Marshals shut the facility down and confiscated its cannabis.

The co-op appealed the government's actions to the Ninth Circuit Court of 
Appeals, which ruled that the lower court should have accepted medical 
necessity as a defense. The Justice Department asked for and got a review 
of the case by the Supreme Court.

Thus, a high court case dealing with a co-op put Federal law and medical 
marijuana to a legal test. And last week, all eight court justices made it 
clear that they could not ignore the content of the Controlled Substances 
Act, not even in medical cases.

Justice Clarence Thomas authored the ruling and wrote that " to resolve the 
question presented, we need only recognize that a medical necessity for 
marijuana is at odds with the terms of the Controlled Substances Act... its 
provisions leave no doubt that the defense is unavailable."

Medical marijuana advocates argue that the Federal law is outdated, having 
been passed in 1970, prior to the most significant cannabis research. 
Thomas suggested that the arena for changing the government's approach to 
cannabis is not the high courts, but Congress.

"Whether, as a policy matter, a (medical) exemption should be created is a 
question for legislative judgment, not judicial interference," Thomas wrote.

A minority of three justices, however, issued a separate ruling that 
confirms the relevance of Federal law but asserts that the ruling's 
language is "overbroad" and that with it, "the Court reaches beyond its 
holdings, and the facts of the case."

Justice John Paul Stevens, the author of the minority opinion, wrote that 
the court's assertion that all cultivation and distribution is illegal 
failed to recognize the relevance of "whether (medical) defense might be 
available to a seriously ill patient." Stevens went on to write that the 
ruling "gratuitously casts doubt on whether necessity can ever be used as a 
defense to any federal statute that does not explicitly provide for it."

The HMCC is usually closed on Mondays, the day the ruling came down, but it 
didn't open the next day and is closed indefinitely. The Humboldt Patient 
Resource Center (HPRC), a second, more clinically-modeled center whose 
managers defected from HMCC last year, shut its doors immediately after the 
news of the ruling splashed.

Pam Heimstadt, HPRC's head nurse, said the court ruling clearly defined the 
clinic's activities as illegal, and remaining open would have exposed it to 
significant legal risks. The HPRC is closed indefinitely, and Heimstadt 
said all of its plants (the clinic cultivated on-site) were destroyed Monday.

A management source with Humboldt United Growers (HUG), a limited liability 
corporation and the HPRC's parent organization, said the turn of events 
will actually make marijuana enforcement more problematic for police, 
because more patients will have turn to the streets and the black market 
for their meds.

That opinion is commonly shared by patients and patient advocates. But the 
activities of the Arcata cannabis centers had been debated and criticized, 
and internal dissent hampered the effectiveness of the local medical 
marijuana movement.

Some complained that both centers set prices that were too close to what's 
being charged on the street. The HUG source, however, said police were 
concerned about the HPRC's prices, because an eighth of an ounce of the 
clinic's best weed went for $38.50 and could have been sold on the street 
for $10 to $15 more.

Jason Browne, one of HMCC's founders and directors, said that police raids 
on medical gardens made demand greater than supply, a situation he says was 
worsened by the attitude of growers. The HMCC would have closed within a 
month anyway, Browne continued, and the court ruling just hastened it. 
There were plans to reorganize the center into what Browne called "a 
community-based co-op that would really drive prices down," but those plans 
have been scrapped because "now the feds won't allow it."

Browne portrayed the local growing scene as tight and capitalistic. "There 
are so many greedy people in Humboldt County - and I'm talking about the 
growers, who are used to the profits of the black market," he said. "There 
just weren't enough growers willing to offer competitive prices. We were 
certifying legal gardens to gain control and manage prices, but we had no 
support from the growers to do that, and police raids and high energy costs 
didn't help."

Charges of profiteering have continually criss-crossed, but Browne said the 
most disturbing issue now is that "patients will be left to fend for 
themselves."

Patients are "angry and afraid," said Allen. "They don't know what to do 
and they don't know what's going to happen next. Many are in great pain and 
the Supreme Court has created serious obstacles between them and the 
medicine they have a right to have."

Club closings premature?

Cannabis clubs in other counties and in the Bay Area have not been as 
cautious about Federal intervention, and remain open. Oakland Buyers' Co-op 
Director Jeff Jones said the closing of Humboldt County's centers is a 
"disappointment," and that "the Arcata clubs are doing exactly what the 
government wants by offering no resistance. Until they come to close 
centers down, there is no reason to shut down. The cannabis centers are 
providing a service to the community and that service is more important 
than ever now."

Robert Raich, one of the co-op's attorneys, also believes the Arcata 
centers have been "unnecessarily skittish" in closing. "What are patients 
going to do now?" he asked. "It's ironic, that they'll have to go to the 
streets and to black market dealers, and the whole reason that the feds are 
doing what they're doing is to promote public safety and shut down illicit 
dealers. Now, they'll be giving them more business because patients will be 
willing to take risks if they perceive their survival is at stake. They'll 
obtain meds of questionable quality and take their chances on the street, 
and that will have a true public safety impact."

Mark Harris, an Arcata attorney specializing in marijuana cases, said he's 
"disconcerted that our clubs have closed" but acknowledged that "everything 
we do here in Humboldt County is on the radar." He believes that a new 
breed of cannabis centers will eventually emerge.

"I think we'll have a different style of club, and we'll see them becoming 
more creative in their approach, and in the ways they supply seriously ill 
patients with the resources they need," Harris said. Clubs might become 
resource facilities instead of distribution centers, he continued, offering 
growing information and referrals instead of supply.

Arcata's recently installed Police Chief Chris Gallagher said he'll use 
District Attorney's Office guidelines as a yardstick. "We're probably not 
going to do anything different as a result of the ruling," he said. "If the 
clubs remain open or if new ones start, they should be aware that the 
Federal government has taken the stance it's taken, and there could be 
enforcement actions as a consequence. I think you'll see a lot more clubs 
closing across the state for that reason."

Medical defense still exists in possession cases, Harris pointed out, and 
patients will respond by taking more of a proactive role. They'll grow 
their own medicine - if they can - or get their meds the old-fashioned, 
illegal way.

D.A.: 'No effect on me'

Medical marijuana producers are guessing how strictly the feds will enforce 
the Controlled Substances Act. Technically, any cultivation of marijuana is 
a Federal crime, but an unwritten protocol says that investigators won't 
intervene in cases that involve less than hundreds of plants (1,000 is 
often mentioned as the threshold number).

If the feds do indeed back off of smaller grows, patients will be able to 
grow cannabis or have someone do it for them. County District Attorney 
Terry Farmer said that the high court ruling won't affect his guidelines 
because it has nothing to do with state law. Farmer's office will stick to 
the thresholds it's followed all along: allowable amounts are 10 plants or 
two pounds of dried product per patient.

"The Supreme Court decision does not really affect me," Farmer said, though 
he went on to underline the ruling's "dampening effect." He added that 
although the court decision didn't impact state law, it has had and will 
have an influence on medical growers.

"That's demonstrated by the closing of the clubs," Farmer said. "Their 
leadership has basically said that, 'Hey, what we're doing has been 
confirmed to be illegal under federal guidelines and they could shut us 
down anytime."

Farmer's approach to medical marijuana, though not without detractors, has 
generally been recognized as fair and reasonable. He said he wants to 
adhere to the intent of state law but he saw problems develop as 
Proposition 215 moved from the ballot to doctor's offices.

"We saw recommendations that were flat bogus, and many were marginal," 
Farmer said, mentioning the name of a Bay Area doctor who's been widely 
sought after for pot prescriptions. "Many viewed (215) as a means of doing 
what they wanted to do all along - smoke pot to feel good."

Abuse of 215's provisions is what drives enforcement, Farmer continued. 
"The people we're running up against are not cancer or MS patients - the 
folks we deal with are people who used to be illegal dope growers trying to 
become medical providers."

Farmer praised HPRC for following a clinical model and said "they were 
doing a good job and I'm sorry to see them go." And though he cast doubt on 
prescribing pot for conditions like alcoholism (for which cannabis has been 
said to provide effective treatment), he acknowledged that "I'm not a 
doctor and don't want to get into that debate."

Will feds ounce-pounce?

Sheriff Dennis Lewis has been more demonstrably criticized for his 
department's marijuana confiscations. Lewis couldn't comment on the Supreme 
Court ruling and its effects because he's about to appear in federal court 
himself, also on a medical marijuana issue.

Lewis has repeatedly said that he believes federal law supersedes 
Proposition 215. And when a Superior Court judge ordered Lewis to return an 
ounce of medical cannabis that had been seized from a patient, the sheriff 
refused to comply, saying that following the order would put him in 
violation of the Controlled Substances Act.

The county decided to put the matter before federal court, which hears the 
case on May 25. Meanwhile, Lewis has been found in contempt for not 
returning the pot, though a hearing is scheduled for early June to ask 
Judge Bruce Watson to lift the contempt ruling in light of the Supreme 
Court's decision.

In the upcoming federal hearing, the county will argue that Lewis should be 
released from the responsibility of the seized marijuana because both its 
former owner, patient Chris Giauque, a Salmon Creek resident who's 
recovering from a spinal injury, and the federal Drug Enforcement 
Administration (DEA) have claimed rights to it.

The county is being represented by Eureka attorney William F. Mitchell, who 
said he couldn't comment on the case. Giauque's lawyer, Bryce Kenney, said 
the Supreme Court decision has no bearing on the case because it focused on 
the activities of a cannabis club, not a law enforcement official who's 
being asked to follow a court order.

What's more, Kenney continued, federal law allows exemptions for police 
officials because they often have to buy or distribute drugs during 
undercover investigations. He also said that Federal law isn't relevant 
because Giauque, who simply possessed the marijuana, didn't violate it.

The going gets convoluted with this one - the Justice Department has filed 
a brief that agrees the county's case should be dismissed in federal court. 
But the Department's attorneys also said they will seek to have the 
much-debated ounce of medical marijuana seized and destroyed under civil 
forfeiture, thus resolving the matter - sort of.

"Obviously, one can't hold the sheriff in contempt for not giving back 
something that no longer exists," Kenney said. "So the problem goes away, 
but it actually won't. If a seizure order is issued, we can file a motion 
to give us a chance to prove that (Giauque's) property should be returned 
because it's not contraband under Federal law."

Kenney believes leverage for change has to be weighed in Congress, not the 
courts. "The Controlled Substances Act reflects an outdated mode of 
thinking, one that Congress is stubbornly adhering to," he said. "The high 
court may have been technically right in relying on the intent of 
Congressional law, but that doesn't reflect modern thinking and it puts the 
burden on Congress to revisit the issue - it bounces the ball back into 
Congress' court."

Growing going underground

Giauque, who's part of a Salmon Creek cannabis co-op that grows and shares 
its medical resources among members, has carried out a variety of moves 
that tested medical marijuana's legal limits. He was busted last April by 
Eureka police just before handing out free medical marijuana in front of 
the Sheriff's Office, and was going to do another give-away last week but 
decided to cancel it after the ruling came down.

He'll cool it now, he said. "I intend to continue activism, but I don't 
want to catch a federal case. The idea is that nobody wants to be in the 
federal gunsight. So some people will be keeping their heads down."

Growers don't know at this point what level of cultivation would draw the 
attention of Federal authorities, Giauque continued, so they're likely to 
be careful. And one effect of the court ruling might be to move outdoor 
medical grows inside.

"The nice, organic, healthy outdoor grows will probably be shut down and 
the majority of high quality marijuana will be produced indoors," said 
Giauque. "Not that I'll be doing it."

Consensus seems to be that patients will still be able to grow for 
themselves. If they're too sick to do it or don't have the resources, 
there's always the street. And that's no consolation to patients who were 
relieved to have safe access to meds. "The black market comes with ripoffs, 
underweight bags and other things which didn't happen when this was being 
done more upfront," said Giauque.

The Salmon Creek co-op still exists, Giauque continued. But he declined 
comment on whether it's still distributing cannabis.

Harris thinks that since the high court's ruling focused on the activities 
of a club, it won't have a wider effect than that. "The Federal Government 
isn't interested in going after the Chris Giauques of the world," he said. 
"The federal focus is on the trafficking of illegal narcotics - 215 remains 
viable and intact."

Raich, the Oakland Co-op's attorney, said cannabis clubs may get another 
shot at operating legally. The Supreme Court refused to consider 
constitutional arguments that Raich said he'll advance in lower courts. One 
regards the applicability of Federal law to drug activity that doesn't 
involve interstate commerce.

A second argument involves due process - the constitution protects against 
the government's meddling in matters that involve basic human rights. 
Whether the right of patients to grow plants that can be used as medicine 
is one of them remains to be considered by the courts.

The right of states to regulate themselves is another issue that hovers, 
and is noted in the high court's minority opinion. The Supreme Court case 
has drawn attention to the Controlled Substances Act itself, and now 
there's increased debate on whether the law's in sync with the times - and 
the will of voters of the eight states that have adopted medical marijuana 
laws.

"Proposition 215 is the camel's nose under the tent," Harris said. "And 
there's no way to keep the rest of the camel out of the tent now."
- ---
MAP posted-by: GD