Pubdate: Wed, 30 Jul 2003 Source: Anderson Valley Advertiser (CA) Column: Cannabinotes Copyright: 2003 Anderson Valley Advertiser Contact: http://www.mapinc.org/media/2667 Author: Fred Gardner Bookmark: http://www.mapinc.org/find?115 (Cannabis - California) PROPOSITION S PROCEEDS APACE In November 2002, 63% of San Francisco voters voted "Yes" on Proposition S, a one-sentence policy question: "Should the city explore the possibility of growing and dispensing medical cannabis?" Two civilian organizers of the task force that promulgated Proposition S, Wayne Justmann and Michael Aldrich had been proprietors at medical marijuana dispensaries. The measure was put on the ballot "in light of the recent DEA crackdown on local medical cannabis clubs," by four city Supervisors: Mark Leno (now a state Assemblyman), Matt Gonzales (now President of the Board), Sophie Maxwell, and Chris Daly. Following the passage of Prop S, at least five reform organizations, with the Drug Policy Alliance in a leading role, took part in meetings to discuss implementation strategies. The DPA hired a professional campaign consultant, Ellie Sue Schafer, and rented space at the Unitarian Church on Franklin St. and Geary Boulevard to hold a "Community Forum on Implementation of Proposition S." At the forum, held July 22, the five leading candidates for Mayor - --Supervisors Tom Ammiano and Gavin Newsom, Treasurer Susan Leal, former Supervisor Angela Alioto, and former Police Chief Anthony Ribera-- tried to outdo each other in expressing support for Prop S. Questions from the audience reflected a willingness to challenge federal law. Robyn Few of Americans for Safe Access asked Candidate Alioto, "As Mayor, would you be willing to stand up to the federal government --to really fight the federal government-- if they came here to rip out our gardens and close our clubs?" Alioto replied yes, but --she believes in "victory through coalition-building." San Francisco District Attorney Terence Hallinan, who is running for re-election, made one of the few concrete proposals when he suggested that under Prop S the city could authorize cannabis clubs to give "caregiver" status to proficient growers, who would then cultivate crops commensurate with the clubs' needs, i.e., a certain amount per documented patient. Kamela Harris and Bill Fazio --two former assistant DAs who are trying to unseat Hallinan--also asserted their support for Prop S, as did Public Defender Jeff Adachi. Were all the above-named individuals and institutions conspiring to violate federal law? Absolutely not, according to featured speaker Gerald Uelmen, Dean of the University of Santa Clara Law School. This is how he explained the legal situation: "...We're in a head-on collision with the federal authorities who say that there is no exception for medical use under the federal Controlled Substances Act and all cultivation, all possession, all distribution is illegal under federal law. How do we get around that? The first approach we tried was to say, 'There should be an exception for medical necessity.' We got shot down on that one in the U.S Supreme Court two years ago. But in issuing that decision, the US Supreme Court made it very clear that they were not deciding any of the questions of the constitutionality of the federal law. Now those issues are working their way up through the courts and will be heard and decided by the 9th Circuit Court of Appeals this fall. There are three fully-briefed, waiting-to-argue cases pending before the 9th Circuit. I'm counsel in two of them: the Oakland Cannabis Co-op Case, which was remanded back to Judge [Charles] Breyer and is now in front of the 9th Circuit. And the WAMM case from Santa Cruz --a motion to get their marijuana back after the DEA raid last September... There's also the [Angel] RAICH case, brought on behalf of patients growing their own for their own use, without the involvement of a club. "I am very optimistic about our chances in the 9th Circuit, because these cases are all going back to the panel that decided the first Oakland Cannabis case... [Chief Judge Schroeder, Judges Reinhardt and Silverman] who aren't afraid of being reversed by the U.S. Supreme Court. They will do what's right. And I'm optimistic that we'll get a favorable decision from them and may be on our way back to the U.S. Supreme Court with these constitutional issues. "...We're making arguments that will appeal to the conservative justices... The essential argument being made in all of these cases is that the power of Congress to regulate intra-state commerce --that is just going on within a state-- is limited to situations where intra-state commerce has substantial effect on interstate commerce... Congress has made a finding in the CSA that all drug trafficking affects interstate commerce. We're trying to persuade the courts that you don't look at the broad activity, you look at the narrow class of activity that the state of California has defined in the Compassionate Use Act. That is, cultivation and possession of marijuana by patients, which has no effect on interstate commerce at all. "It's very important that the model we're taking to the U.S. Supreme Court and to the 9th Circuit is a model in which we can say, 'There really is no impact on interstate commerce from these activities.' "There's another issue raised in the OCBC case, and it was a very prominent issue in the prosecution of Ed Rosenthal... The issue of immunity: whether there is an exception under the federal CSA for local officials who are engaged in the enforcement of a law related to controlled substances. The argument we're making before the 9th Cricuit is that this broad immunity clause provides that if a local government authorizes the enforcement of Prop 215 by local officials, even if what those local officials are doing violates the federal controlled substances act, they are immune, because of what the Act itself says... "When this was presented to Judge Breyer in the Rosenthal case, he kind of read the immunity clause right out of the law by saying, 'You can only be immune if the activity in which you're engaged is in compliance with the CSA. In other words, you only get immunity if you don't need it.' A ludicrous interpretation of the law, and I hope the 9th circuit will see it that way... [A favorable ruling by the 9th Circuit] would open the door to government-authorized programs in which the people running the programs actually are officials and we can say they are engaged in the enforcement of a law related to controlled substances. They are enforcing California's Compassionate Use Act by ensuring that only patients who have the requisite medical approval are possessing, cultivating and using marijuana. "The other issue on the front burner right now is the potential liability of physicians for making recommendations under the CSA. We had a wonderful win in the 9th Circuit in Conant v. Drug Czar where the court declared that physicians are protected by the First Amendment, they have the First Amendment right to discuss all treatment alternatives with their patients, and the government cannot limit that right by saying 'You can't talk to your patients about medical marijuana.' The [government's appeal] may be headed to the U.S. Supreme Court as early as this fall. And that will be a very important case, because if we lose that one, it's over. But I'm very optimistic, because of this court's track record on First Amendment issues, that we can win that case in the U.S. Supreme Court. And I think a win on that case will put us in a very good position when these other constitutional issues find their way up to the court after the 9th Circuit has ruled on them. "In terms of implementing Prop S , there are really only three models to work from. Model A, the model used by the Oakland Cannabis Co-op and by the WAMM Collective in Santa Cruz, is a true collective, where the patients are all members of an organization collectively working together and they all come under the joint user concept. Model B would try to utilize the exception under federal law for medical research. That is the model being used in San Mateo. The problem with that is, the only pot you can use in a government research program is the government-grown pot that comes from their plantation in Mississippi, which has significant drawbacks in terms of medical quality... And Model C is the Whiskey Rebellion. Back in the 1790s, when the federal government first decided they were going to tax the production of whiskey, the farmers in Western Pennsylvania said 'Fuck you, federal government!' And George Washington sent in the federal troops and put down the rebellion. I think that model really has very little to recommend it. I think we really should struggle to come within whatever exceptions we can find in both the state and federal law." The WAMM Model The Drug Policy Alliance has hired Mike and Valerie Corral, the widely admired leaders of the Wo/man's Alliance for Medical Marijuana to consult on political and horticultural matters in connection with Prop S. At the forum Mike advised, "Most of the cost in a WAMM style community garden would be donated. Patients would donate labor and the city would donate the garden space and an office... Assuming each patient uses about three pounds a year, the requirement for a 25-patient garden would be 75 pounds. Production costs would be $250 per pound, $13.50 an ounce, and 50 cents a gram. That's for a patient-run garden where the patients do all the work and everything is on a donation basis... Remember, the WAMM model is based on outdoor growing. The more indoor growing you do, the more your costs go up dramatically. "The city has greenhouse space available, and growing in a greenhouse is about the same as growing outdoors. There are a few things you have to change in that environment, but the cost would be negligible.... Even in an urban environment, with the cooperation of your neighbors and the local authorities, people can grow outside on apartment decks, they can grow in their backyards... Indoor growing might make sense for security reasons, or for an individual grower, but if you're growing for a large collective, it makes far more sense to be growing outdoors in the light of the sun. You can set up your garden so that patients in wheelchairs can have full access to the plants and be gardeners themselves. We've learned in WAMM that exposure to the plants can be greatly beneficial to patients. So the idea we're proposing is as much hands-on patient participation as possible, which in turn reduces the security issues..." to be continued The Ballad of Grinspoon and Guy Sativa is a pretty plant It grows tall and green With 68 cannabinoids And the spicy-sweet terpenes Guy says I can market this I'll put it in a spray Grinspoon says let's grow our own Why should people have to pay? Guy says some prefer it neat And some don't like the high Grinspoon says the government Won't even let 'em try Euphoria's a side effect Could do a lot of good Guys says I'm all for ya, please Don't let me be misunderstood We're dealing with a system that Is not about to change Grinspoon says why not Reinvent the grange? And let a thousand farmers grow Every helpful strain... Guy says my approval wasn't easy Or cheap to almost obtain Sativex is a useful drug It bears the Bayer cross Grinspoon shakes the bottle With a subtle sense of loss "You're right from your side And I am right from mine We're just one too many mornings And a thousand miles behind..." - --- MAP posted-by: Jay Bergstrom