CANNABIS CLINICS WITHER AFTER SUPREME COURT DECISION

A U.S. Supreme Court decision that maintains the status quo of marijuana
law has nevertheless netted an immediate and significant effect - the
county's two medical cannabis centers have closed in response.

That's because the unanimous high court ruling that came down Monday, May
14 sets a legal precedent for applying Federal law to medical marijuana
distribution. The Federal Controlled Substances Act bars all cultivation
and distribution of marijuana, and puts cannabis in the same category as
heroin, PCP and LSD - it's defined as a dangerous drug with high potential
for abuse and no medical value.

Affirmation of the law's authority has opened the door to federal
prosecution of medical marijuana producers, and has local growers talking
about more underground approaches to cultivating cannabis for medical
patients. And the county's medical cannabis centers, both located along the
same street in Arcata, are shuttered.

Proposition 215, California's medical marijuana law, is untouched by the
ruling and possession of cannabis by medical patients is still legal.
However, Greg Allen, president of the Humboldt Medical Cannabis Center
(HMCC), said that although Federal law doesn't address possession, its ban
on distribution will challenge patients' ability to get their medicine.

"At this point, it seems any grow much larger than an individual patient
would use will result in confiscation and perhaps prosecution," Allen said.
"Patients still don't have access to the medicine they have the right to
have, and nobody can do much to help them."

It may not be the feds that medical marijuana cultivators need to be most
wary of, Allen continued. "What I see as more significant is that local law
enforcement has been very emboldened by the Supreme Court passing on this
case. It will be interesting to see what they do, but it seems that
patients growing for themselves is not inconsistent with federal law at
this point."

High court: No medical defense

The essence of the ruling can be summed up in a sentence - the court has
affirmed that medical necessity cannot be used as a defense against federal
anti-distribution laws - but the events that led up to it followed a
twisting path.

In early 1998, the U.S. Justice Department sued the Oakland Cannabis
Cooperative, a medical marijuana distribution center, to block its
activities because they violated the Controlled Substances Act. The
District Court granted a preliminary injunction to stop the co-op from
distributing to patients.

The co-op continued doing it, though, asserting that its activities were
medically necessary and served the public interest. The co-op and its
director, physician Jeff Jones, were found to be in contempt of court and
U.S. Marshals shut the facility down and confiscated its cannabis.

The co-op appealed the government's actions to the Ninth Circuit Court of
Appeals, which ruled that the lower court should have accepted medical
necessity as a defense. The Justice Department asked for and got a review
of the case by the Supreme Court.

Thus, a high court case dealing with a co-op put Federal law and medical
marijuana to a legal test. And last week, all eight court justices made it
clear that they could not ignore the content of the Controlled Substances
Act, not even in medical cases.

Justice Clarence Thomas authored the ruling and wrote that " to resolve the
question presented, we need only recognize that a medical necessity for
marijuana is at odds with the terms of the Controlled Substances Act... its
provisions leave no doubt that the defense is unavailable."

Medical marijuana advocates argue that the Federal law is outdated, having
been passed in 1970, prior to the most significant cannabis research.
Thomas suggested that the arena for changing the government's approach to
cannabis is not the high courts, but Congress.

"Whether, as a policy matter, a (medical) exemption should be created is a
question for legislative judgment, not judicial interference," Thomas wrote.

A minority of three justices, however, issued a separate ruling that
confirms the relevance of Federal law but asserts that the ruling's
language is "overbroad" and that with it, "the Court reaches beyond its
holdings, and the facts of the case."

Justice John Paul Stevens, the author of the minority opinion, wrote that
the court's assertion that all cultivation and distribution is illegal
failed to recognize the relevance of "whether (medical) defense might be
available to a seriously ill patient." Stevens went on to write that the
ruling "gratuitously casts doubt on whether necessity can ever be used as a
defense to any federal statute that does not explicitly provide for it."

The HMCC is usually closed on Mondays, the day the ruling came down, but it
didn't open the next day and is closed indefinitely. The Humboldt Patient
Resource Center (HPRC), a second, more clinically-modeled center whose
managers defected from HMCC last year, shut its doors immediately after the
news of the ruling splashed.

Pam Heimstadt, HPRC's head nurse, said the court ruling clearly defined the
clinic's activities as illegal, and remaining open would have exposed it to
significant legal risks. The HPRC is closed indefinitely, and Heimstadt
said all of its plants (the clinic cultivated on-site) were destroyed Monday.

A management source with Humboldt United Growers (HUG), a limited liability
corporation and the HPRC's parent organization, said the turn of events
will actually make marijuana enforcement more problematic for police,
because more patients will have turn to the streets and the black market
for their meds.

That opinion is commonly shared by patients and patient advocates. But the
activities of the Arcata cannabis centers had been debated and criticized,
and internal dissent hampered the effectiveness of the local medical
marijuana movement.

Some complained that both centers set prices that were too close to what's
being charged on the street. The HUG source, however, said police were
concerned about the HPRC's prices, because an eighth of an ounce of the
clinic's best weed went for $38.50 and could have been sold on the street
for $10 to $15 more.

Jason Browne, one of HMCC's founders and directors, said that police raids
on medical gardens made demand greater than supply, a situation he says was
worsened by the attitude of growers. The HMCC would have closed within a
month anyway, Browne continued, and the court ruling just hastened it.
There were plans to reorganize the center into what Browne called "a
community-based co-op that would really drive prices down," but those plans
have been scrapped because "now the feds won't allow it."

Browne portrayed the local growing scene as tight and capitalistic. "There
are so many greedy people in Humboldt County - and I'm talking about the
growers, who are used to the profits of the black market," he said. "There
just weren't enough growers willing to offer competitive prices. We were
certifying legal gardens to gain control and manage prices, but we had no
support from the growers to do that, and police raids and high energy costs
didn't help."

Charges of profiteering have continually criss-crossed, but Browne said the
most disturbing issue now is that "patients will be left to fend for
themselves."

Patients are "angry and afraid," said Allen. "They don't know what to do
and they don't know what's going to happen next. Many are in great pain and
the Supreme Court has created serious obstacles between them and the
medicine they have a right to have."

Club closings premature?

Cannabis clubs in other counties and in the Bay Area have not been as
cautious about Federal intervention, and remain open. Oakland Buyers' Co-op
Director Jeff Jones said the closing of Humboldt County's centers is a
"disappointment," and that "the Arcata clubs are doing exactly what the
government wants by offering no resistance. Until they come to close
centers down, there is no reason to shut down. The cannabis centers are
providing a service to the community and that service is more important
than ever now."

Robert Raich, one of the co-op's attorneys, also believes the Arcata
centers have been "unnecessarily skittish" in closing. "What are patients
going to do now?" he asked. "It's ironic, that they'll have to go to the
streets and to black market dealers, and the whole reason that the feds are
doing what they're doing is to promote public safety and shut down illicit
dealers. Now, they'll be giving them more business because patients will be
willing to take risks if they perceive their survival is at stake. They'll
obtain meds of questionable quality and take their chances on the street,
and that will have a true public safety impact."

Mark Harris, an Arcata attorney specializing in marijuana cases, said he's
"disconcerted that our clubs have closed" but acknowledged that "everything
we do here in Humboldt County is on the radar." He believes that a new
breed of cannabis centers will eventually emerge.

"I think we'll have a different style of club, and we'll see them becoming
more creative in their approach, and in the ways they supply seriously ill
patients with the resources they need," Harris said. Clubs might become
resource facilities instead of distribution centers, he continued, offering
growing information and referrals instead of supply.

Arcata's recently installed Police Chief Chris Gallagher said he'll use
District Attorney's Office guidelines as a yardstick. "We're probably not
going to do anything different as a result of the ruling," he said. "If the
clubs remain open or if new ones start, they should be aware that the
Federal government has taken the stance it's taken, and there could be
enforcement actions as a consequence. I think you'll see a lot more clubs
closing across the state for that reason."

Medical defense still exists in possession cases, Harris pointed out, and
patients will respond by taking more of a proactive role. They'll grow
their own medicine - if they can - or get their meds the old-fashioned,
illegal way.

D.A.: 'No effect on me'

Medical marijuana producers are guessing how strictly the feds will enforce
the Controlled Substances Act. Technically, any cultivation of marijuana is
a Federal crime, but an unwritten protocol says that investigators won't
intervene in cases that involve less than hundreds of plants (1,000 is
often mentioned as the threshold number).

If the feds do indeed back off of smaller grows, patients will be able to
grow cannabis or have someone do it for them. County District Attorney
Terry Farmer said that the high court ruling won't affect his guidelines
because it has nothing to do with state law. Farmer's office will stick to
the thresholds it's followed all along: allowable amounts are 10 plants or
two pounds of dried product per patient.

"The Supreme Court decision does not really affect me," Farmer said, though
he went on to underline the ruling's "dampening effect." He added that
although the court decision didn't impact state law, it has had and will
have an influence on medical growers.

"That's demonstrated by the closing of the clubs," Farmer said. "Their
leadership has basically said that, 'Hey, what we're doing has been
confirmed to be illegal under federal guidelines and they could shut us
down anytime."

Farmer's approach to medical marijuana, though not without detractors, has
generally been recognized as fair and reasonable. He said he wants to
adhere to the intent of state law but he saw problems develop as
Proposition 215 moved from the ballot to doctor's offices.

"We saw recommendations that were flat bogus, and many were marginal,"
Farmer said, mentioning the name of a Bay Area doctor who's been widely
sought after for pot prescriptions. "Many viewed (215) as a means of doing
what they wanted to do all along - smoke pot to feel good."

Abuse of 215's provisions is what drives enforcement, Farmer continued.
"The people we're running up against are not cancer or MS patients - the
folks we deal with are people who used to be illegal dope growers trying to
become medical providers."

Farmer praised HPRC for following a clinical model and said "they were
doing a good job and I'm sorry to see them go." And though he cast doubt on
prescribing pot for conditions like alcoholism (for which cannabis has been
said to provide effective treatment), he acknowledged that "I'm not a
doctor and don't want to get into that debate."

Will feds ounce-pounce?

Sheriff Dennis Lewis has been more demonstrably criticized for his
department's marijuana confiscations. Lewis couldn't comment on the Supreme
Court ruling and its effects because he's about to appear in federal court
himself, also on a medical marijuana issue.

Lewis has repeatedly said that he believes federal law supersedes
Proposition 215. And when a Superior Court judge ordered Lewis to return an
ounce of medical cannabis that had been seized from a patient, the sheriff
refused to comply, saying that following the order would put him in
violation of the Controlled Substances Act.

The county decided to put the matter before federal court, which hears the
case on May 25. Meanwhile, Lewis has been found in contempt for not
returning the pot, though a hearing is scheduled for early June to ask
Judge Bruce Watson to lift the contempt ruling in light of the Supreme
Court's decision.

In the upcoming federal hearing, the county will argue that Lewis should be
released from the responsibility of the seized marijuana because both its
former owner, patient Chris Giauque, a Salmon Creek resident who's
recovering from a spinal injury, and the federal Drug Enforcement
Administration (DEA) have claimed rights to it.

The county is being represented by Eureka attorney William F. Mitchell, who
said he couldn't comment on the case. Giauque's lawyer, Bryce Kenney, said
the Supreme Court decision has no bearing on the case because it focused on
the activities of a cannabis club, not a law enforcement official who's
being asked to follow a court order.

What's more, Kenney continued, federal law allows exemptions for police
officials because they often have to buy or distribute drugs during
undercover investigations. He also said that Federal law isn't relevant
because Giauque, who simply possessed the marijuana, didn't violate it.

The going gets convoluted with this one - the Justice Department has filed
a brief that agrees the county's case should be dismissed in federal court.
But the Department's attorneys also said they will seek to have the
much-debated ounce of medical marijuana seized and destroyed under civil
forfeiture, thus resolving the matter - sort of.

"Obviously, one can't hold the sheriff in contempt for not giving back
something that no longer exists," Kenney said. "So the problem goes away,
but it actually won't. If a seizure order is issued, we can file a motion
to give us a chance to prove that (Giauque's) property should be returned
because it's not contraband under Federal law."

Kenney believes leverage for change has to be weighed in Congress, not the
courts. "The Controlled Substances Act reflects an outdated mode of
thinking, one that Congress is stubbornly adhering to," he said. "The high
court may have been technically right in relying on the intent of
Congressional law, but that doesn't reflect modern thinking and it puts the
burden on Congress to revisit the issue - it bounces the ball back into
Congress' court."

Growing going underground

Giauque, who's part of a Salmon Creek cannabis co-op that grows and shares
its medical resources among members, has carried out a variety of moves
that tested medical marijuana's legal limits. He was busted last April by
Eureka police just before handing out free medical marijuana in front of
the Sheriff's Office, and was going to do another give-away last week but
decided to cancel it after the ruling came down.

He'll cool it now, he said. "I intend to continue activism, but I don't
want to catch a federal case. The idea is that nobody wants to be in the
federal gunsight. So some people will be keeping their heads down."

Growers don't know at this point what level of cultivation would draw the
attention of Federal authorities, Giauque continued, so they're likely to
be careful. And one effect of the court ruling might be to move outdoor
medical grows inside.

"The nice, organic, healthy outdoor grows will probably be shut down and
the majority of high quality marijuana will be produced indoors," said
Giauque. "Not that I'll be doing it."

Consensus seems to be that patients will still be able to grow for
themselves. If they're too sick to do it or don't have the resources,
there's always the street. And that's no consolation to patients who were
relieved to have safe access to meds. "The black market comes with ripoffs,
underweight bags and other things which didn't happen when this was being
done more upfront," said Giauque.

The Salmon Creek co-op still exists, Giauque continued. But he declined
comment on whether it's still distributing cannabis.

Harris thinks that since the high court's ruling focused on the activities
of a club, it won't have a wider effect than that. "The Federal Government
isn't interested in going after the Chris Giauques of the world," he said.
"The federal focus is on the trafficking of illegal narcotics - 215 remains
viable and intact."

Raich, the Oakland Co-op's attorney, said cannabis clubs may get another
shot at operating legally. The Supreme Court refused to consider
constitutional arguments that Raich said he'll advance in lower courts. One
regards the applicability of Federal law to drug activity that doesn't
involve interstate commerce.

A second argument involves due process - the constitution protects against
the government's meddling in matters that involve basic human rights.
Whether the right of patients to grow plants that can be used as medicine
is one of them remains to be considered by the courts.

The right of states to regulate themselves is another issue that hovers,
and is noted in the high court's minority opinion. The Supreme Court case
has drawn attention to the Controlled Substances Act itself, and now
there's increased debate on whether the law's in sync with the times - and
the will of voters of the eight states that have adopted medical marijuana
laws.

"Proposition 215 is the camel's nose under the tent," Harris said. "And
there's no way to keep the rest of the camel out of the tent now."