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