PATIENTS WRESTLE OVER HAZY MEDICAL-MARIJUANA LAW

SEATTLE -- Seizure patient David Means was so sure he had the legal right
to grow a forest of marijuana in his apartment that, after he was
burglarized last month, he filed a claim with his insurance company.

State Farm quickly reimbursed him nearly $3,500 for the "medicine" he lost.

Means even invited police in to make a report after the May 6 burglary,
making sure they saw the letter from his doctor authorizing him to smoke
pot for medical reasons.

Two weeks later, police returned and arrested him, ripping up his more than
40 plants, confiscating his growing equipment, handcuffing him and carting
him off to jail. Means said they joked about the letter.

Means' case exemplifies the lack of clear guidelines for patients and
police when it comes to enforcing the state's new medical-marijuana law.
Was Means pushing the law beyond its limit? Did the police go too far?
Attorney Jeff Steinborn, who has specialized in marijuana cases for the
past 30 years, said the bust may become "one of the leading test cases" of
the law.

The law, which was passed by voters last fall, allows qualified patients,
with documentation from their doctors, to possess a 60-day supply of
marijuana. But the law is silent on how patients who can't grow their own
might get marijuana, because selling and distributing the drug is still
considered illegal by law enforcement.

Means' doctor, Francis Podrebarac, learning of his patient's arrest, was
stunned. According to the law, a patient is legally protected by a letter
from a doctor advising that the patient would likely benefit medically from
the use of marijuana.

But how can he give his patients such advice, Podrebarac asked, when police
can treat them like common criminals?

The law, said Dan Satterberg, chief of staff for King County prosecutor
Norm Maleng, gives a patient a legal defense to the charge of possession of
marijuana, a felony crime if the amount is more than 40 ounces. "Implicit
in that is the right to grow it and to have police leave you alone if they
find your stuff," he said.

But, Satterberg added, the law doesn't actually say that police can't
arrest a patient for marijuana possession.

It's a "spirit of the law" vs. the "letter of the law" conflict.

It's also a conflict of world view, between a system to punish criminals
and a system to help people with pain and terminal diseases.

So far, representatives of law enforcement, health professions and
civil-liberties groups have been unable to fashion guidelines for the real
world. Doctors have a model template letter drafted by the Washington State
Medical Association to guide them, but police have little training in the
law, Satterberg said

Leo Poort, Seattle Police Department legal adviser, said the department has
plans for further training.

Poort said that many parts of the law are "very confusing for law
enforcement."

For example: If a qualified patient can possess a 60-day supply, what does
that mean for someone with a lot of little plants that may or may not make
it to harvest time? Is this supply to be calculated in future ounces or
today's weight?

Means, 41, said the plants in his West Seattle apartment were small, not
due to produce harvestable marijuana until August.

Police spokeswoman Pam McCammon said the department won't comment on the
case because it's still under investigation. Police checked with the
prosecutor's office before proceeding with the search and arrest.

But Satterberg said the deputy prosecutor was not asked about Means'
qualifications as a patient. "I don't know why it wasn't discussed," he said .

It isn't likely that police missed the doctor's authorization, duct-taped
right inside the door.

Inside, under intense halide lights and a temperature of 80 degrees, Means
grows marijuana plants in blue-plastic swimming pools, surrounded by walls
of reflective mylar.

His forest always numbers fewer than 49 plants, Means said. Based on advice
he got from a patient-advocacy group, Means believed 50 plants to be the
magic number that can trigger a bust by federal authorities, who don't
honor state law.

Means said he's checked and rechecked with police, because he didn't want
to be doing anything illegal. "I never tried to hide it from anybody," he
said. "I didn't need to -- I was doing everything right."

The police report indicated that officers arrived on May 20 to investigate
an anonymous complaint that marijuana plants were visible to the public, a
misdemeanor.

According to the report, Means invited officers into his apartment to read
the text of the marijuana initiative. The officers saw his
marijuana-growing operation and his water pipe on the table and arrested
him. They called narcotics detectives and "the scene was turned over to them."

Means said he never invited police in and left his door shut but unlocked
while he and an upstairs neighbor went down the hall to the mailbox.

The neighbor, Donald Miller, 17, said he remembers hearing Means shout,
"Hey ! What are you doing?" when Means saw police opening his closed door.

Means said police opened his door without his permission and began the
search -- with no warrant. Even if the plants were visible to the public,
he maintained, police should have just given him a ticket. Instead, for
about four hours, Means said, he was handcuffed, taunted and provoked.

Means said police never read him his rights, then laughed and made vulgar
remarks about their worthlessness when he pointed out his doctor's letters.

Poort, who declined to talk specifically about the case, argued that the
public expects vigorous enforcement, investigation and seizure of drugs
from citizens who "totally push the envelope and go beyond what the law
allows."

Doctors who refuse to follow the law when prescribing, lose their licenses,
Poort said, and citizens share responsibility on the medical-marijuana law.
"This is serious business," he said.

Means said he's had seizures since childhood and has found that marijuana
is the only thing that controls them without serious side effects. Although
he thought he was in danger of having an epileptic seizure, Means said, the
police and detectives refused to allow him to smoke marijuana.

Researchers have disagree about marijuana's seizure-prevention qualities. A
1997 panel said the drug may have potential, but an Institute of Medicine
report this year concluded that the evidence did not justify further studies.

Means said one of the detectives reminded him that he had arrested Means in
1990. That arrest resulted in Means' pleading guilty to felony possession
of marijuana and serving two months in jail.

Officers put Means in a police car and took him to the King County Jail,
where they booked him on suspicion of drug possession. That night, he said,
worried about seizures, he smoked marijuana given him by another prisoner
who had smuggled it in. The next day, he was released without charges.

When Means arrived at his apartment, accompanied by his doctor, Podrebarac,
they were shocked at what they saw: All of Means' plants had been cut and
pulled up by the roots, dirt dumped on top of the huge tanks where he was
raising exotic fish, the cords to the tank and lights cut in half and much
of his expensive equipment, including lights, fans and scales, gone.

Means calculates that police destroyed or confiscated $100,000 worth of
equipment and plants, and several hundred specially bred marijuana seeds
which, he said, are worth $20 each.

Chris Vike, the apartment manager, closed the apartment after the police
left. He said it looked "like a tornado came through his apartment. I was
pretty surprised at how big the mess was."

Podrebarac, has requested a formal investigation of the arrest by Seattle
Police Department's internal-investigations unit.

Means, who doesn't work and collects Social Security disability payments
and a federal housing subsidy, said his growing operation is "like a
community P -Patch." Patients with AIDS and other qualifying conditions,
who are too sick to grow their own marijuana, kick in money for supplies
and equipment, he said. He does the gardening.

"It's patients helping other patients," he said. "It's about love. It's
about love, all about love."

Under the law, however, one person is allowed to be caregiver to only one
patient. Growing marijuana for many other patients doesn't appear to be legal.

But how else do patients, who are unable to grow their own, get marijuana,
asked Joanna McKee of Green Cross Patient Co-op. "This is an ugly little
secret that's been going on all over the state. We have three or four
patients who have been helping other patients.

"Yes, it's 100 percent illegal. But there are so many people who are way
too sick to grow for themselves. The initiative came through without any
sort of distribution process. We have to get people to grow for them."

Still, according to the law, a patient may only possess what's necessary
for "personal, medical use."

"If it's more than his 60-day supply, or if he's involved in distribution,
then it's outside the law," said Satterberg, the prosecutor's representative .

Podrebarac called the state board that regulates physicians to ask if there
was something else he should have done to protect his patient.

"The law says a patient like David is protected if he has valid
documentation, and it was hanging right there," said Podrebarac, a
psychiatrist. "We were stunned."

In fact, the documentation Podrebarac described appears to be what the law
demands, said Pat Brown, acting director of the state health-care-
professions division, which regulates doctors.

But, she added, Means' case brings up a continuing problem: "There truly
isn't anyone to consult when the question is, `Is this adequate
documentation?' (The medical-marijuana law) wasn't assigned to any state
agency for oversight."

At this point, the only organization that seems clear about the
medical-marijuana law is State Farm Insurance. Both Means and the insurance
company's spokesman use the same analogy when talking about medical marijuana.

"We would handle it like insulin for a diabetic," said Paul Wylde, a
spokesman at State Farm Insurance's state headquarters. As long as it's a
"medically necessary" drug, and paperwork is in order, "then we would
handle it under the terms of the policy as it's written."

What State Farm tried to do, said Wylde, was to "try to take out the fact
that it is a substance of controversy." To verify the value, State Farm
calls a "legitimate supplier," which in this case included Capitol Hill
Compassion in Action and Green Cross Patient Co-op.

After the burglary, State Farm paid Means $280 an ounce for marijuana
determined to be "AA" quality, and $200 an ounce for Grade "A" marijuana.
The grade is determined by the marijuana's potency and quality.

Wylde said State Farm does not track claims by specific item, and therefore
could not answer whether it had reimbursed other policyholders for claims
of stolen medical marijuana.

Means said he may file another claim for the equipment, plants and seeds
police "stole" from him.

State Farm's Wylde said if there's a question about legality of Means'
growing operation, the company would wait for that to be settled before
paying a claim. But for now, what's legal and what's illegal remains
unclear, particularly when it comes to zealous growers -- or zealous law
enforcement. Attempts to assign a state agency to help write regulations
failed in this year's Legislature. Talks among the various parties have hit
roadblocks over patient privacy, among other things.

"The issue is: What guidelines are police supposed to follow when they
encounter someone growing?" Satterberg asked. "There isn't any guideline
under the law."