THE CASE FOR MEDICAL MARIJUANA IN SAN DIEGO COUNTY 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 methamphetamine. 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 conservative. "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.
No member comments available...
|