MURKY MARIJUANA LAW TRIPS UP PATIENTS AND POLICE

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. This time, they 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 both 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. The law says 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, noted 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 possession of marijuana.

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 set up to punish
criminals and a system set up 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, says
Satterberg, have received little training in the law.

Leo Poort, Seattle Police Department legal adviser, said the
department has plans for further training. He says officers "haven't
had that much experience with the law yet."

Many parts of the law, said Poort, 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 did check with
the Prosecutor's Office before proceeding with the search and arrest,
she saids.

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

The growing operation

It isn't likely 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 the federal
government, which doesn't honor the 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 bust

Officers, according to the police report, arrived on May 20 to
investigate an anonymous complaint that marijuana plants were visible
to the public, which, under the law, is a misdemeanor.

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

Means' version is radically different. He never invited police in, he
said. He 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 says 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, he 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.

Why he smokes pot

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 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 claims, are worth $20 each.

Chris Vike, the apartment manager, closed up the apartment right 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, Means' doctor, has requested a formal investigation of the
arrest by SPD'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.

The doctor's dilemma

Podrebarac, Means' doctor, called the state board that regulates
physicians to ask if there were 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."

State Farm's view: `like insulin'

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

State Farm's Wylde says 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. And 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."