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.