MEDICAL MARIJUANA REMAINS IN LEGAL LIMBO

Prop. 215 Approved by Voters Decade Ago

Over the years, doctors prescribed Vicodin, Valium and a medicine
chest of other drugs to soothe his constant pain, but the narcotics
killed his appetite and kept him awake at night. Until he started
smoking marijuana, Cody could barely sit still for a movie.

Ten years ago, 56 percent of California voters decided that people
with medical problems like Cody's should be able to grow and smoke
marijuana on their physician's recommendation.

But the potential of Proposition 215, which conflicts squarely with
federal laws that classify marijuana among the most dangerous drugs,
has never been realized.

Thousands of California patients have no legal access to medical
marijuana. Thousands of others worry they may be found out and
arrested for cultivating too many plants or storing too much dried
pot, because most cities and counties haven't passed the laws needed
to regulate the dispensation of marijuana used for medical purposes.

Unscrupulous and profit-minded dispensary operators have taken
advantage of the absence of uniform rules, opening storefronts
anywhere they can and selling marijuana to unqualified patients.

Two years ago, drug agents raided Cody's house in Jamul and uprooted
his tiny garden.

"They took 'em - three lousy plants," said Cody, 32, who was
paralyzed in a 1991 motorcycle crash. This year, he harvested his
modest crop weeks before it matured for fear of losing it to another bust.

It was no secret that most of the law enforcement community opposed
the medical use of marijuana when the issue landed on the state ballot in 1996.

Lesser known, however, is the detailed and coordinated assault many
federal, state and local officials conducted once it passed.

In the past decade, police departments in dozens of California cities
have joined federal drug agents in more than 100 raids on medical
marijuana farms, cooperatives and dispensaries.

After a July sweep across San Diego County, U.S. Attorney Carol Lam
and San Diego County District Attorney Bonnie Dumanis used a news
conference to issue a warning to dispensary operators: Close or face
the consequences. They all closed, and the local marketplace for
medical marijuana dried up almost overnight.

Three San Diego County supervisors are so strongly opposed to
Proposition 215 that they voted to sue the state to try to overturn
medical marijuana laws rather than implement them. Oral arguments in
the case, which was driven by Supervisors Bill Horn, Dianne Jacob and
Pam Slater-Price, are scheduled to begin this month.

Ten states have joined California in passing medical marijuana
legislation, and public opinion polls show that respondents favor
medical use of marijuana by 3 to 1.

Yet no one has come up with a way to resolve the impasse between
states and the federal government, which can impose criminal
penalties for what the states have made legal.

"It's a study in politicians evading the will of voters, which they
do not agree with," said Mark Bluemel, an attorney who has defended
medical marijuana patients. "We have San Diego being among some rogue
counties that refuse to obey this law."

But Horn, chairman of the county Board of Supervisors, said the state
has put cities and counties in an impossible position.

"I'm not going to enact a state law that's in violation of federal
law until I hear from a judge that it's legal," he said. "I'm not
necessarily challenging the will of the people."

State politicians also contributed to the failure to implement
Proposition 215. It took seven years to get clarifying legislation
through the statehouse and signed into law by the governor.

When Senate Bill 420 finally went into effect on Jan. 1, 2004, it
established statewide guidelines outlining the number of marijuana
plants a patient could legally grow and directed county health
departments to issue identification to qualified patients so police
would know when drug use was legitimate and when it was being abused.

But by a measure of nearly 4 to 1, California cities have chosen to
outlaw pot dispensaries rather than to regulate them. In communities
such as San Francisco, Santa Rosa and Santa Cruz, which have all
embraced Proposition 215, elected leaders say the dispensary model
has worked fairly well.

Government officials didn't waste any time reacting to the passage of
Proposition 215.

Hours after polls closed Nov. 5, 1996, former state Attorney General
Dan Lungren, now a congressman from Gold River in Northern
California, sent a memo to every district attorney, sheriff and
police chief across the state.

The three-page letter laid out what would become the standard for
dealing with Proposition 215. It advised police and prosecutors to
judge marijuana cases on the basis of whether suspects could
reasonably cite medical need as a defense at trial - a legal position
called an affirmative defense - rather than simply letting them go if
their paperwork was in order.

"We were confronted with both the underlying law (prohibiting
marijuana) and the proposition," Lungren said in a recent telephone
interview. "We were trying to inform law enforcement officers what
would be proper conduct."

Two weeks later, Lungren and the attorney general of Arizona, which
had also passed a medical marijuana initiative, warned their
counterparts across the country to be wary of the rising medical
marijuana movement.

On Dec. 6, local, state and federal officials convened a strategy
session in Washington to deal with the Arizona and California
propositions. The meeting focused on ways to undermine the
voter-approved initiative, including going after physicians who
recommended the drug, establishing a national group to fight
legalization of marijuana and calling a special election to repeal
the law in California.

Records of the session contend that medical marijuana supporters seek
to "legitimize illicit drug use through 'medicalization' approach"
and take the effort nationwide.

Three days later, another memo from Lungren's office to federal drug
enforcement officials clarified that local police officers could
arrest people suspected of breaking federal law.

Medical marijuana proponents complain that government officials
deliberately undercut Proposition 215 as soon as it passed.

"Once they came up with affirmative defense as a legal
interpretation, it was game, set and match," said Patrick McCartney,
a medical marijuana activist and freelance journalist who has
compiled an extensive history on the government response to the
growing political movement.

"If law enforcement who were so inclined could arrest and prosecute
qualified medical marijuana users, then what did voters vote on?"
McCartney wondered.

Legal scholars question the federal government's role in medical
marijuana debates within individual states. Several believe U.S. drug
agents should enforce federal laws but also respect state rights.

However, the Drug Enforcement Administration has recruited local
agencies to join task forces that continue to raid dispensaries and
cooperatives.

"The California medical marijuana law created an exception to
California law, but could not do so for federal law," said Erwin
Chemerinsky, a constitutional law professor at Duke University. "I
wish federal authorities would use their discretion to respect the
California initiative, but they clearly have not done so."

Gerald Uelman is a Santa Clara University law professor who is
awaiting an appellate decision on a medical marijuana lawsuit he is
fighting on behalf of the city and county of Santa Cruz. Those two
governments have led many of the efforts to implement Proposition 215.

Uelman said federal authorities "crossed the line in their effort to
impose their agenda" on state officials.

"This is still an issue where the politicians are behind the curve,
in terms of the will of the voters," he said. "That's true across the
board, not just in California."

Jessica Reeves lives in a Hillcrest studio and usually relies on
friends to get the marijuana she needs to relieve her constant pain.
Sometimes she drives to dispensaries in Riverside County or in Los
Angeles that have not yet been raided.

Two years ago, the 29-year-old medical assistant contracted
necrotizing fasciitis, the flesh-eating bacteria. Doctors saved her
life, but she lost much of her right arm.

Nineteen operations later, Reeves said smoking pot is the only thing
that helps her live a near-to-normal life.

"When I turned 18, I voted for Proposition 215," she said. "I didn't
know 10 years later that I would need it. Now I can't get it because
they closed all the dispensaries down."