Pubdate: Thu, 23 Feb 2006
Source: Gay & Lesbian Times (CA)
Author: Pat Sherman
Bookmark: (Cannabis - California)
Bookmark: (Cannabis - Medicinal)


Nearly a decade after its passage, the state's nebulously drafted 
medical marijuana law has left a lingering cloud of uncertainty 
regarding its implementation. Since it was approved in 1996 by nearly 
57 percent of California voters, Proposition 215 (the Compassionate 
Use Act) has conflicted with federal drug law, which classifies 
marijuana as a Schedule I controlled substance, along with cocaine, 
heroine, LSD and peyote.

Perhaps the only certainty to emerge throughout the 10 years of legal 
wrangling over the law has been the San Diego County Board of 
Supervisors' hard-line opposition to medical marijuana (sans Ron 
Roberts, whose support for patients' access to the drug has 
repeatedly put him on the losing end of board actions regarding the issue).

In response to a state law passed in 2003 that required counties to 
establish a medical marijuana identification card system for people 
who possess a doctor's recommendation for the drug, the Board of 
Supervisors played its most dicey hand to date. After initially 
refusing to comply with the ID card mandate, SB 420, the county has 
filed with the state to overturn Prop. 215 - one of 12 laws across 
the country that permit medical marijuana use.

On Jan. 24, the American Civil Liberties Union, Americans for Safe 
Access and the Drug Policy Alliance filed a motion to intervene in 
the lawsuit on behalf of medical marijuana patients and their 
doctors, setting the stage for what marijuana advocates say is to 
sure be a precedent-setting legal battle.

Patients' perspective

While medical marijuana advocates were urging the Board of 
Supervisors to drop its suit, the county gained an unexpected ally in 
its suit: the county of San Bernardino.

"There is a conflict between state and federal law that must be 
resolved by the courts before the county feels it can move forward," 
said Bill Postmus, chair of the San Bernardino County Board of 
Supervisors, in a statement.

Keith McGrew lives with his partner in the rural community of Running 
Springs, in the San Bernardino Mountains. He began using marijuana 
several years ago to help him sleep, and discovered that the drug 
also allayed the debilitating effects of neuropathy in his feet.

"I was quite a major casualty to AIDS, and marijuana really bounced 
me back big," said McGrew, who works in construction. "Marijuana 
basically got rid of all my neuropathy ... as well as [helping me] 
get really good, quality sleep so that I could regenerate my body."

McGrew said he had been preparing to go on medical retirement from 
his job when he started using the drug to treat his condition.

"I would be in the system collecting social security, away on early 
medical retirement with my union, if it wasn't for medical marijuana," he said.

San Diego resident Pam Sakuda is a party to the ACLU's intervening 
action against San Diego County Board of Supervisors' lawsuit. She 
has been using marijuana for the past two years to combat the effects 
of the chemotherapy she undergoes in her fight against stage 4 
colorectal cancer. The drug helps her combat nausea, loss of 
appetite, sleeplessness and anxiety, she said.

Diagnosed in 2002, Sakuda said she initially tried other 
pharmaceutical drugs to help her deal with her nausea, to little 
effect. She currently gets the drug at one of several local 
dispensaries operating under the terms of SB 420. Sakuda said she 
worries about the tenuous position she and other patients might find 
themselves in if the county is successful in its efforts to overturn Prop. 215.

"If some people were to decide that the benefits were greater than 
the risk, and they chose to get it [on the street], then you've got 
legal problems," Sakuda said. "That's the last thing anyone who is 
really ill needs to be thinking about."

Supervisor Horn's anti-pot crusade

Propelled largely by County Supervisor Bill Horn and, to a lesser 
degree, Supervisor Dianne Jacob, the board majority has repeatedly 
condemned medical marijuana as "bad medicine" and a "gateway drug" 
leading to the use of harder substances such as heroine and crystal 

In comments before the board of supervisors in regard to SB 420, 
Jacob said: "the state has a gun to our heads, forcing us to create a 
program for a drug that the federal government says is illegal.... 
Why is Sacramento forcing us to allow residents to break federal law? 
.. I don't know what they're smoking up there!"

Among her arguments against the use of medical marijuana, Jacob cites 
the deleterious effects of smoking the drug. As an alternative, Jacob 
has advocated for the use of the pill Marinol, a synthetic form of 
THC, the active ingredient in marijuana. Though the Schedule II drug 
is available at pharmacies with a doctor's prescription, people 
taking Marinol to relieve nausea and increase appetite are often 
unable to hold down a pill. Smoking marijuana can provide relief 
within minutes, while ingested THC must be metabolized into other 
compounds by the liver, taking hours for patients to feel relief.

Under the terms of SB 420, the county is required to keep a database 
of people who have been prescribed medical marijuana. Jacob argues 
that the database would not be immune to seizure by federal 
investigators. In December, the federal Drug Enforcement 
Administration and local law enforcement raided 13 local medical 
marijuana dispensaries. In 2002, one of San Diego's leading medical 
marijuana advocates, Steve McWilliams, was arrested by federal agents 
for the cultivation of marijuana in violation of federal law. While 
free on bail and awaiting an appellate court ruling, McWilliams 
committed suicide.

"The Drug Enforcement Administration could ask the county for that 
list and raid those homes, just like they did to Steve McWilliams," 
said Jennifer Stone, a spokesperson for Jacob.

Asked if the county would necessarily have to give those records over 
to federal agents, Stone asked, "Does the county even want to be in 
that position?"

During his Feb. 7 state of the county address, board chair Bill Horn 
blasted the use of medical marijuana, raising the specter of "violent 
gangs" to illustrate what he views as the outcome of allowing medical 
marijuana use.

"At a time when drug cartels are flooding our streets with marijuana 
and gang warfare is rampant, it's impossible for the Board of 
Supervisors to give its blessing to the use of a drug that is 
forbidden by federal law," Horn said. "If [the state wants] to 
violate federal law, they should issue the cards."

Supervisors Ron Roberts and Greg Cox initially voted to issue the ID 
cards, though in late December, Cox voted with the board majority to 
challenge the state law. Roberts was absent during that vote.

Speaking with the Gay & Lesbian Times, Cox said he initially 
supported issuing the cards because he felt the county had an 
obligation to do so under state law.

"My preference would be that the state assume that responsibility," 
Cox said. "Given the fact that the Board of Supervisors voted not to 
issue the cards, it seemed like the most prudent thing for us to do 
would be to at least try to get some legal resolution in regard to 
whether federal law prevails or whether state law prevails."

Asked why the supervisors didn't instead channel their efforts into 
having the state issue the cards, Cox said: "I don't know that the 
board majority would have been swayed by that argument.... One way or 
another, this is going to be decided through the courts, and it 
seemed like that was probably the most expeditious way to get this 
issue going."

Cox said the ideal outcome for him would be get "a clear answer" in 
regard to the efficacy of the drug.

"Obviously there's been studies done on both sides, kind of dueling 
experts, but I think if you can get it sanctioned by the federal 
government, then you'd have something you can hang your hat on," he said.

Michael Bartelmo, a C-5 quadriplegic who uses marijuana to help with 
muscle spasticity, spoke at the supervisors' meetings several times 
on the issue. He commended Roberts for his support, but said his 
testimony was largely received with supercilious smiles and deaf ears 
by the other members.

"They seemed to be concerned, but I guess I misread them," Bartelmo 
said. "It's unnerving to think that someone is smiling and looking at 
you with concern, and then 10 minutes later they raise their hand and 
[vote against you]."

Over the years, Cox has listened to patients speak in support of 
medicinal marijuana.

"Frankly, the ones that came to the board meeting were kind of a 
mixed bag, to be honest with you," Cox said. "I think there were some 
that had legitimate problems. One gentleman was burned in the Cedar 
Fire, [but] there [were] a couple that you kind of go, hmm.... Of 
course, you're sitting up there just looking at them. There's no way 
you can make a medical diagnosis. I'm not a doctor."

Bruce Mirkin, a spokesperson for the Marijuana Policy Project, said a 
victory for the county would be a "disaster" for patients, involving 
years of litigation and erstwhile suffering while the decision makes 
its way through the appeals process, likely winding up in Supreme 
Court - all at taxpayers' expense.

"Politicians are out of step with public opinion," Mirkin said. He 
noted that there is more unified support for medical marijuana than 
for abortion, same-sex marriage and the war in Iraq, and said he is 
confident that the county will fail in its efforts.

Last summer, 161 members of the U.S. House of Representatives voted 
to stop federal raids on medical marijuana patients and dispensaries, 
an increase from the 148 votes the measure received the previous year 
(though still shy of the 218-vote majority required).

San Diego Mayor Jerry Sanders, who previously opposed the use of 
medical marijuana, began voicing his public support for its use after 
a close friend was diagnosed with terminal cancer.

Sanders spokesperson Fred Sainz characterized the mayor's friend as 

"He's a straight-laced, business suit, wingtip-wearing normal 
Republican Joe Blow, and the guy basically said that the only thing 
that calms his nausea from the chemotherapy is marijuana," Sainz 
said. "[The mayor] thoughtfully listened over a period of time and 
understands the need and supports the law that was passed by state 
voters. He does not agree with the county's position."

San Diego Councilmember Toni Atkins said she also feels the county's 
lawsuit is a waste of taxpayer dollars.

"I think that it is going after people who are sick," Atkins said. 
"They seem to want to paint this as illegal drug use, much like the 
federal administration. We, as legislators, are required to take 
forward the mandate of the people. I think the Board of Supervisors 
is going against their constituents."

Atkins said that the supervisors' stated concerns about profiteering 
among dispensaries and people obtaining the drug who are not 
legitimate medicinal users could be solved if they would follow state law.

"The county could be a leader in this by setting up some sort of 
system and controlling it," Atkins said. "Since the '70s, the federal 
government has been providing medical cannabis to people in a 
controlled manner. If the federal government can distribute medical 
cannabis - and they do - then I don't understand why the county can't 
do it in such a way that there is adequate oversight."

Mirkin said he is confident that federal laws will eventually catch 
up with public opinion.

"Bit by bit, we do move forward," Mirkin said. "People get it. Why 
the San Diego County Supervisors don't is beyond me."

Margaret Dooley, a San Diego spokesperson for the Drug Policy 
Alliance, said she suspects the supervisors are not motivated to 
protect patients from prosecution, but to promote the appearance of a 
zero-tolerance drug policy - tough rhetoric that resonates during 
political campaigns.

"For Bill Horn, I think these people's comfort is a sacrifice he's 
willing to make for a simple political message," Dooley said. "He's 
been saying for years that marijuana is bad. Now he's not willing to 
complicate that message by saying, 'But it actually can help some 
people.' I think that's really what it boils down to. He likes his 
simple political message."

Though San Diego County voters approved Prop. 215 with a modest 52 
percent of the vote in 1996, polls show support for medical marijuana 
use is on the rise. In a recent KPBS poll, 61 percent of county 
residents said that local officials should cooperate with the state 
and allow for the use of medical marijuana. A poll commissioned by 
the Marijuana Policy Project found that 67 percent of county 
residents support medical marijuana use, and that 80 percent believe 
suing the state is a waste of taxpayers' money.

"The fact that you have the board following Bill Horn's lead on this 
shows that they're really not representing San Diegans," Dooley said.

While the ACLU and other patient advocates are preparing their legal 
response to the county's shift from federal to state court, local 
activists have put their discontent with the supervisors into action, 
spearheading an effort to limit county supervisors to two terms. 
Mirkin said the Marijuana Policy Project plans to hire 
signature-gathers to help get an initiative on the ballot this year.

The case for compassionate use

The county initially filed its suit against the state in federal 
court. Before re-filing this month in state court, it added another 
defendant to the suit, the National Organization for Reform of 
Marijuana Laws (NORMAL).

County Counsel John Sansone said the reason the suit was moved from 
federal to state court was so that NORMAL could be added as a 
defendant. The organization sent a letter to the Board of Supervisors 
threatening to sue them in state court over their refusal to issue 
the ID cards.

"That's one of the big contributing factors as to why we went into 
state court," Sansone said. "[NORMAL] could only sue us in state 
court. We did not want to be suing the state in federal court and 
defending the same action in state court. To have two different 
lawsuits going on the same issue at one time didn't make sense."

Attorneys for the ACLU and Americans for Safe Access contend that the 
county re-filed in state court because their initial suit was flawed.

"A subdivision of a state cannot sue the state in federal court," 
said Joe Elford, an attorney with Americans for Safe Access. "I don't 
know if it's more embarrassing to come up with BS responses or to 
have to admit [that their suit was flawed].... They could've added 
NORMAL to the suit in federal court."

Sansone rebuffed the notion that the suit is politically motivated.

"All the polls show that people support medical marijuana, for the 
most part. And the board members, obviously, they read the polls 
too," Sansone said. "If they're going just for the polls, their 
political motivation would be to go along with what most of the 
people want, but they're not."

The crux of the county's case against the state is that federal laws 
that make marijuana illegal for recreational or medicinal use preempt 
California's medical marijuana laws. However, the ACLU and other 
patient advocates involved in the suit point to a Jan. 17 decision by 
the U.S. Supreme Court in which the justices appear to tip their hats 
in favor of states' rights. In a 6-3 vote, the high court ruled that 
federal drug law can't be used to punish doctors in Oregon who help 
terminally ill patients end their lives.

Allen Hopper, a senior staff attorney with the ACLU's Drug Law Reform 
Project, said the ruling bolsters the ACLU's case.

"The Oregon law didn't just say that Oregon physicians can prescribe 
controlled substances to help someone commit suicide and not be 
punished under Oregon state law," Hopper said. "The Supreme Court 
said the federal government can't yank those doctors' licenses."

Though Sansone declined to elaborate, he said he was "pleased" with 
the Oregon ruling and looks forward to using it in the county's arguments.

"If you read that closely, that helps us more so than hurts us," he said.

The county also contends that the state is in violation of an 
international treaty the United States entered into in 1961, which 
holds each of the 150 countries in the treaty accountable for 
stemming the flow of illegal drugs.

"I think that is going to go a long way in terms of convincing the 
court that, in fact, federal law must preempt state law because the 
50 states are not free to choose what treaties to follow and what 
treaties not to follow," Sansone said.

Hopper said a "non-preemption" provision of the federal Controlled 
Substances Act allows states leverage on whether or not their laws 
must be in accord with federal drug law. In addition, Hoper argued, 
under the country's federalist system of government, the 10th 
Amendment to the U.S. Constitution holds that the health, safety and 
welfare of a state's citizens remain under that state's jurisdiction. 
Over the years, the U.S. Supreme Court has interpreted the 10th 
Amendment as stating that the federal government cannot order states 
to enact laws, repeal laws or to enforce federal laws, he said.

Had preemption been a valid argument, Hopper said, the federal 
government would have already used it to overturn any or all of the 
12 states' medical marijuana laws.

"California's medical marijuana statutes have gone up to the Supreme 
Court twice ... and in neither of those cases was the federal 
government arguing preemption," Hopper said. "They would have used 
that argument to shut down medical marijuana years ago - and they 
haven't. They wouldn't have to engage in this very detailed legal 
analysis about these other issues if they could just step back and 
say, 'Wait a minute, federal law doesn't even permit this to be 
happening at all.'"

When the county re-filed the case in state court, Hopper said, it 
also dropped its challenge to subsection D of Prop. 215, which 
decriminalizes the possession and use of medical marijuana under state law.

"I think what the county has recognized - only in a half-hearted way, 
though - is that the federal government cannot dictate to the state 
of California which people are or are not included under certain 
state law criminal provisions, and that's what subdivision D does," 
Hopper said.

Elford agreed that the omission of subsection D suggested a weakness 
in the county's argument.

"If they recognized that they can't knock out that portion of 215, 
you really have to wonder what exactly is their legal theory," Elford said.

City guidelines

Before the responsibility for issuing patient ID cards fell to the 
county, advocates lobbied city officials to establish local law 
enforcement guidelines to clarify Prop. 215 and prevent legitimate 
medical users from prosecution.

In 2001, the city formed the Medical Marijuana/Cannabis Task Force to 
determine how much marijuana a patient may possess in dry or plant 
form, where the drug may be obtained and what constitutes a 
caregiver. Though the City Council felt it was the county's 
responsibility to deal with public health issues, it approved 
guidelines in October 2003 that allow patients to possess up to a 
pound of the drug at any one time and up to 24 plants. Caregivers may 
be in possession of up to two pounds. Though the council approved the 
establishment of a voluntary ID card system, it never agreed to pay 
for issuance of ID cards.

"Our resources are limited, and we don't really do social service," 
said Atkins, who supported the goals of the task force. Of the 
roughly $17 million the city receives in federal block grant dollars 
each year, Atkins said, only about 15 percent can be used for the 
operation of social service programs, which has typically been used 
to fund senior meal services, The Center's HIV/AIDS outreach and 
other limited programs.

"The ID card program would be considered a social service," Atkins 
said. "[The money] is really spoken for, and it's a really tight process."

The city's ID card efforts were suspended in 2004, following the 
passage of SB 420.

Task force chair Jerry Meier said the task force last met two months 
ago and may meet again in the coming months to discuss whether to 
urge the city to join the ACLU as a friend of the court. He said the 
feeling among task force members is that they have largely 
accomplished the job they set out to do.

Meier said the subject of the last few meetings has been the 
dispensaries that have sprouted up since SB 420 became law.

"The last time the task force met, we sent a letter to the City 
Council and we copied [the letter to] the police chief and Mayor 
Murphy as well," Meier said. "We were very upset because a lot of 
these dispensaries were charging more than street value. We saw a lot 
of pot doctors advertising in The Reader. It was really sort of an 
insult to the work that we had done trying to legitimately give 
patients who had a doctor's recommendation some sort of framework by 
which they had access to it."

Cannabis clubs and dispensaries

In response to a raid on two of its San Diego County dispensaries in 
December and allegations of profiteering on the back of medically ill 
patients, Legal Ease, Inc. issued the following statement on its Web site:

"Legal Ease, Inc. strives to have the lowest prices in the county for 
comparable product despite having a much higher overhead. In fact the 
founder and president has never even drawn a salary. Other employees 
are earning as much as 50 percent less than they have in previous 
positions. The modest $25 lifetime membership fee collected supports 
Legal Ease, Inc. charity programs; including a program that provides 
free medication to qualified low-income patients.

"Legal Ease, Inc. is continuously improving in the identification and 
verification of process of its medical marijuana patients.... Once 
verified members are issued a state of the art photo 
identification/membership card, which is mandatory for acquiring 
medicine. Members are only admitted to these locations upon 
presentation of their identification card."

Special Agent Misha Piastro of the Drug Enforcement Administration 
said the District Attorney's Office is currently evaluating evidence 
seized at the dispensaries. During initial undercover operations, he 
said, agents were able to access the drug without the doctor's 
recommendation required under Prop. 215. However, not all of the 
dispensaries raided by the DEA's Narcotics Task Force failed this 
test, he said.

Piastro said his interpretation of state law makes no concession for 
dispensaries to operate.

"If you look at 215, the definition of what a caregiver is, I don't 
think a dispensary qualifies - not even under the broadest 
definition," Piastro said.

Dana Greisen, assistant chief of the narcotics division of the 
District Attorney's Office, said the medical recommendations required 
for patients to access marijuana are "extremely vague."

"They say, 'I, so and so, suffer from' - then they list every disease 
in the world, be it cancer or glaucoma or any serious illness - 'and 
therefore designate person B, to be my primary caregiver.' ... Then 
the recommendation will say, 'I authorize or I recommend that this 
patient use this amount of marijuana or an unknown amount of 
marijuana.' Most of them are for about six months to a year [and are] 
obtained by going to the same small number of doctors who then charge 
$250 to get it."

Greisen said the focus of the investigation is the large-scale 
distribution of marijuana in violation of federal law, and not 
individual medical marijuana patients. However, a patients' records, 
which may contain copies of their drivers licenses, could be used in 
the prosecution of the dispensaries, Greisen said.

"The state prosecutions that are done are the people that have 100 
plants as opposed to the 12 or 24 plants that you can have, depending 
on where you are in the county or the city," Greisen said. "Because 
of the vagueness of the law, we can't take any particular position as 
to who we will and who we won't prosecute, because we do it on a 
case-by-case basis - what is the severity of the illness? What was 
the basis of the recommendation? But it's not considered as much as 
the sheer amount that is involved."

Information collected in the raids will first go to the U.S. 
Attorney's Office for evaluation, Greisen said, before a legal 
analysis by the District Attorney's Office.

"Obviously, on the federal side, the [doctors'] recommendations at 
that point don't mean a whole lot, because it's just as illegal to 
sell marijuana on the federal side, whether there's a recommendation 
or not.... If the feds decide to prosecute, then it probably would 
not end up on the state side."

During one of the December raids, a man arrived at a dispensary with 
a pound of high-grade marijuana, hoping to sell it for around $4,000, 
Greisen said. Agents found a Glock handgun with 33 rounds of 
9-millimeter ammunition attached to it in his car.

"That is what we're trying to avoid with issues like the 
dispensaries," Greisen said. "There's a lot of profiteering in the 
medical marijuana area on all ends, and that's obviously not really 
the intent of medical marijuana law. Its' supposed to be access for 
the patients."

The federal government has made patients such as Keith McGrew and his 
partner uneasy about obtaining the drug. In San Bernardino County, 
where people are prohibited from visiting a dispensary, the drug must 
be delivered to the patient.

"We're not really into the way that San Bernardino allows for the 
dispensaries to exist," McGrew said. "We're not into that whole idea 
of somebody having a record of where we live. We're still very 
covert, operating in terms of feeling like at some point we could get 
invaded by the FBI."

McGrew and his partner frequently drive to a dispensary in Long Beach 
to obtain the drug. McGrew's health insurance does not cover medical 
marijuana, which costs him up to $300 a week. Despite the financial 
burden, he said he does not feel like he has been the victim of profiteering.

"I do think that there's maybe some illicit activity going on, but I 
really don't think it's a big deal," he said. "I don't think we've 
ever paid too much."

ACLU staff attorney Allen Hopper said he had concerns about the 
timing of the raids and whether the supervisors were complicit in the effort.

"To me, it's no accident that the San Diego County Board of 
Supervisors [first] filed their sort of ill-advised lawsuit in 
federal court," Hopper said. "The timing of that relative to when 
they cooperated with federal DEA agents to raid the dispensaries is 
really troubling to me. I think that it's part of a concerted effort 
by some conservative politicians in San Diego who disagree with the 
state law to sort of do whatever they can to collude with the federal 
government to try to make the state law unenforceable."

To date, 16 out of 58 California counties have complied with the 
terms of SB 420 and implemented the ID cards: Alameda, Contra Costa, 
Del Norte, Humboldt, Kern, Marin, Mendocino, Tehama, Trinity, Napa, 
Riverside, Santa Barbara, Shasta, San Mateo, Sonoma and San 
Francisco. As of Feb. 16, a total of 1,164 ID cards had been issued statewide.
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MAP posted-by: Jay Bergstrom