BREAKING THE MEDICAL-MARIJUANA LOGJAM

Arcata's Top Cop May Have Devised Solution To Prop. 215 Standstill

More than two years after California voters approved Proposition 215, the
ballot initiative legalizing the medical use of marijuana, prospective
patients throughout the state still find it exceedingly difficult to access
and consume medicinal cannabis in a safe, affordable and legally sanctioned
manner. The open enmity of man law-enforcement officials and the
extra-legal shenanigans of some Prop. 215 proponents have combined to
deprive thousands of California citizens of what, under state law, is now
simply another form of medicine.

It is possible that his situation may soon change. Unlike his predecessor,
anti-Prop. 215 zealot Dan Lungren, California Attorney General Bill Lockyer
has decided not to actively pursue prosecution of medical-marijuana
caregiving associations sanctioned by local law enforcement. Lockyer has
also formed a statewide task force to study ways to more precisely define
and effectively implement the sometimes hazy provisions of the initiative.

In addition, some medical-marijuana proponents are now3 touting as "the
best available solution" an enabling ordinance drawn up in large part by a
n member of law enforcement. In the city of Arcata – deep in the hear to
California's marijuana rich "Emerald Triangle" – police chief Mel Brown,
together with local marijuana caregivers, fashioned a measure approved by
the Arcata City Council that incorporates much of Prop. 215 into the city
municipal code. Humbolt County activist Robert Harris, who assisted in
assembling the ordinance, is convinced the Arcata example can serve as a
model for other California cities.

"We need to bring the battle out of the courtrooms," Harris says, "and into
the council chambers."

In January of 1997, Brown became the first law enforcement official in the
state to announce he intended to implement the provisions of Prop. 215.
Working with members of his city's Humbolt Cannabis Center, Brown devised a
pre-certification program to assist patients in lawfully accessing medical
marijuana.

"The stupid thing gained national recognition, for some crazy reason,"
Brown says. "People just went nuts. I guess it was the oddity of law
enforcement working together with those darn marijuana types."

For Brown, however, the program was "a simple matter of departmental
self-preservation." In the days following the passage of Prop. 215, "it
seemed like everybody in this town caught with marijuana- and believe me,
there's a lot of it up here – said, 'hey, I've got a letter from Dr.
Feelgood saying I can have this.'" But with the city's certification
program in place, "nobody who doesn't actually have one tries to tell my
cops they have a recommendation from a doctor."

Recognizing that Brown had put himself "out on a limb a bit," city
officials sought to codify his department's policy in Arcata's municipal
code. The resulting ordinance, which Brown says mostly "just parrots what
Prop. 215 says," was assembled primarily by Brown, City Attorney Nancy
Diamond, and Jason Browne of the Humbolt Cannabis Center, who Brown credits
with "wanting to help patients, rather than advance some pro-legalization
agenda." Approved by the Arcata City Council, the measure became law in
March 1998.

Under the Arcata ordinance, a medical-marijuana patient presents a photo ID
to the Arcata Police Department, together with the name of the doctor who
recommended the herb. After using the Internet to access an American
Medical Association site providing professional information on every
physician in the state, Brown calls the doctor, asking questions using data
culled from the AMA site "to make sure I'm not talking to some janitor."
Once satisfied he is indeed in contact with the physician, Brown then
determines whether the doctor has in fact recommended medical marijuana for
that patient. If the prospective patient passes this test, a card is
issued anointing the recipient as a legal consumer of medical marijuana.
To maintain privacy, each patient is identified in the department database
only "in code-there's no way to put a name on it," Brown says. "It
requires a willing police officer and a willing patient to decode it."

Brown also maintains an agreement with the Humbolt Cannabis Center
authorizing "a 24-hour warrantless right to search their facility. My
argument was, if they're legitimate center, they have nothing to hide, and
they accepted that." Brown additionally worked with the center to "set it
up like a farm co-op," where patients and caregivers "share in resources
and production, so no money is exchanged." Brown says this helped shield
the center from state and federal prosecutions, as agencies in those
jurisdictions particularly frown on operations that seem to be turning a
profit.

Brown says people occasionally try to take advantage of the ordinance,
inevitably to their sorrow. For instance, Humbolt County District Attorney
Terry Farmer has decreed that 10 plants is the limit a medical-marijuana
patient may grow for personal use. "We've had patients who were growing,
say 46 plants – the county drug task force comes in , yanks out 36, leaves
10, and then refers the person to the DA's office for prosecution," Brown
says. Arcata's ordinance, he stresses, "is not a stay-out-of-jail-free card."

Brown believes his city's policy serves "legally legitimate patients and
caregivers, as we don't want to unnecessarily detain or take things from
these people. People's individual constitutional rights mean a lot to us.
And it helps the department because I don't want my cops wasting their time
in court on stuff that's not going to be prosecuted."

The Arcata ordinance "works well here," Brown says. "Whether it would work
well in Chico, I don't know."

Four members of the Chico City Council say they would be willing to at
least discuss implement an ordinance similar to Arcata's, although two
remain extremely skeptical of the very legitimacy of medical marijuana.

Mayor Steve Bertagna believes "the jury is still out on whether marijuana
really has medical uses." He regards marijuana as "a transition drug" with
"great potential for misuse" and is therefore in the main "adamantly
opposed to loosening up at all on this issue." Still, Bertagna would not
rule out consideration of a city medical-marijuana ordinance, "though I'd
need to hear the medical community talk about it."

Councilmember Rick Keene also expressed "real reservations about it.
Whatever state law requires we'll of course conform to, but I don't feel
any more comfortable with medical marijuana now than when the thing was on
the ballot." Keene publicly opposed Prop. 215, believing it "primarily an
attempt by those who want to see marijuana legalized as a recreational drug
to get in through the back door." He remains convinced that, medical,
marijuana "is not really necessary," and before considering an ordinance
like Arcata's, Keene would need "evidence from people in the medical
profession, not just some folks from the Cannabis Club. I want to hear
from doctors. I want to hear, 'I'm an oncologist, and I have X number of
patients dying of stomach cancer, and I've found marijuana really helps
them.'"

Councilmember Bill Johnston offered that "it's not unreasonable to take a
look at it," while Councilmember David Guzzetti "would support wanting more
information" on the Arcata ordinance. Guzzetti believes "we're way behind
he times in dealing with this matter," noting that "voters throughout the
state have been thwarted as to what they thought they were going to get in
approving Prop. 215."

Yet Guzzetti cautions that local officials who attempt to even rigorously
apply the provisions of Prop. 215 probably do so to their political peril.
In the fall of 1996, former Butte County Sheriff Mick Grey appeared before
the Chico City council seeking support from that body in opposing Prop.
215. When Guzzetti and then-mayor Michael McGinnis, both seeking
re-election in November 1996 balloting, decline to support Grey's
resolution, they were excoriated in a succession of slick mailers sent to
Chico voters accusing the pair of a "cavalier endorsement of illegal drugs"
that "undermine(s) our efforts to convince our children to remain
drug-free." Guzzetti managed to secure re-election, but McGinnis was driven
from office.