S.F. TO U.S.: BACK OFF ON MEDICAL MARIJUANA LAW

Medication: Court fights are shaping up for city that revels in defiance.
Some say it's flirting with anarchy.

SAN FRANCISCO--Here in the self-proclaimed capitol of defiance, they are
preparing to wage a war, a battle of conscience over medical marijuana to
be fought on two distinct and separate fronts: the city versus the state of
California, the city versus the federal government.

Willie Brown joined forces Wednesday with several other California mayors,
firing off a salvo of letters to Washington, asking the Clinton
administration to stop persecuting medical marijuana clubs.

Two days earlier, Dist. Atty. Terence Hallinan--the city's chief law
enforcement officer--had promised that the city would distribute marijuana
on its own and threatened that police officers would stop making marijuana
arrests if the San Francisco clubs are closed.

Citywide rallies are planned for Tuesday, when federal prosecutors take
club operators to court here. Hallinan will appear at an early morning
prayer-for-pot breakfast, while two county supervisors will address a noon
demonstration.

As the courts and the state grapple with interpreting Proposition 215,
which legalized marijuana for medical purposes, this city is in lock-step
in support for marijuana to relieve the suffering of patients with ailments
such as AIDS, cancer and glaucoma.

"We have people who are suffering for health reasons whose suffering is
apparently alleviated by the use of marijuana," Hallinan said. "The city
wants this. We have seen proof."

Critics Fear Erosion of Norms

This is not the first time that San Franciscans have ignored state and
federal laws to tread what they felt was the moral high ground. But it is
probably the city's most united front in the face of possible prosecution.
From the average voter to the office of the mayor, the message to state and
federal law enforcement officials is loud and clear: Back off.

But one person's fight for justice can be another's fomenting anarchy. Some
historians and experts in the legal and drug policy fields look at the
battle brewing here and worry about its implications.

While Hallinan boasts of pride in "San Francisco having its own
conscience," political historian Richard DeLeon voices "a sense of
astonishment that little San Francisco is throwing its weight around and
asserting its autonomy."

"They're really pushing the envelope with this," said DeLeon, author of
"Left Coast City." "There's a sense of erosion of the norms and
responsibilities of national citizenship. Those are disintegrating. There
could be a proliferation once again of each municipality going their own
way, and that portends something pretty dangerous."

Thumbing official noses at other people's policies is practically a sport
in San Francisco. The last decade alone offers a wealth of examples.

In 1992, then-Mayor Frank Jordan--formerly the chief of police and
considered conservative in these parts--made good on a campaign promise to
sign legislation endorsing needle exchange programs as a means to fight the
spread of AIDS.

Needle exchange efforts were illegal under state law at the time. But two
years earlier the city's health commission had supported such programs, and
city voters had approved Proposition O, which asked the Legislature to
eliminate penalties for the use and distribution of hypodermic needles
without prescriptions.

Today, needle exchange is legal if a city or county is under a state of
medical emergency, said Supervisor Tom Ammiano. "So we vote one in every
two weeks. That allows for needle exchange."

In 1989, the supervisors--whom Ammiano describes as "running the gamut from
moderate to progressive"--voted to declare San Francisco an official "city
of refuge" and barred police and city employees from cooperating with
federal authorities in any potential deportation matters.

Four years later the supervisors watered down the sanctuary law--but only a
little and only when threatened with the loss of millions of dollars in
state and federal funds. Today, Hallinan says, city employees can turn over
only the names of convicted felons to the Immigration and Naturalization
Service.

And five years before state voters approved Proposition 215--which passed
by a larger margin here than in any other county--San Franciscans adopted
city Proposition P, which urged the legalization of hemp medication,
including marijuana. It passed with 80% of the vote.

DeLeon ranked the state's 58 counties on their level of political
tolerance, using a variety of state propositions and weighing how the
counties voted. The propositions included those concerning English-only
legislation, the quarantine of AIDS patients and the fate of affirmative
action.

Although DeLeon's index shows that the Bay Area as a whole is more tolerant
than the rest of the state, San Francisco is what is known in statistical
parlance as an "outlier."

"San Francisco is both a statistical outlier and a conceptual outlier,"
DeLeon said. "It stands out as way different from everyone else."

Gavin Newsom is the county's newest supervisor--a fourth-generation San
Franciscan and the only straight, white male on the board. Newsom is proud
of his region's place on the cutting edge of public debate and describes
the city's behavior this way:

Sometimes, he said, "we need to preempt the government. You feel compelled
to do that sometimes when the country does not represent your
constituency."

When it comes to making medical marijuana available at all costs, he said,
"we need to do things that thumb our nose at the status quo. You're dealing
with people's lives. . . . It's gutsy and bold and risky but that's what
San Francisco is all about."

Resisting Federal Laws

Just wait a minute, responds an incredulous Mark A.R. Kleiman, UCLA
professor and drug policy expert. For starters, he notes, there are far
more important drugs than cannabis that are being withheld from American
patients. If you want to pick a fight, why waste your time with this one?

That said, Kleiman worries about the precedent that San Francisco is
setting. After all, he says, "there's good reason to obey the Constitution
when you can."

"God knows what would happen if the city of San Francisco started having
its health department pass out cannabis," Kleiman said. "The fact that
those people are doing a city job is no defense against a felony charge."

And just look at some of those in history who have taken it upon themselves
to flout the nation's laws. Kleiman's favorite examples are the
Nullification Crisis of 1828 and 1950s efforts to block school integration
in the South.

As the Civil War began to brew and Southern cotton barons ostensibly chafed
under federal tariffs, John C. Calhoun came up with the Doctrine of
Nullification, a concept that declared all states sovereign and therefore
able to nullify any federal law that interfered with their interests. Not
terribly long after, the South seceded from the Union.

And then there was Arkansas Gov. Orval Faubus, who used his National Guard
troops to block the mandated integration of Central High School in Little
Rock.

"Now here we have Terence Hallinan bravely arranging himself with Orval
Faubus and John C. Calhoun," Kleiman said. "What kind of company is that?"

San Franciscans would probably rather align themselves with the early 19th
century judges who chose to ignore the fugitive slave law. That law
required judges to turn in runaway slaves to their masters; many judges
refused, joining forces with the abolitionist movement in breaking the back
of slavery.

But Franklin Zimring, a professor of law and the director of the Earl
Warren Legal Institute at UC Berkeley, argues that "making this into either
Orval Faubus at the courthouse door or Harriet Beecher Stowe is a little
premature."

At issue here is a complicated interplay of local, state and federal
issues. On the one hand is federal law, which says that marijuana is
illegal. Under the U.S. Constitution, federal law is supreme.

However, the federal government has discretion about what laws it goes out
of its way to enforce. "Just because marijuana is illegal, the federal
government doesn't have to load all its guns," Zimring said.

"If Willie Brown were making a legal argument, he'd be in deep water,"
Zimring said. "But he's not. He's doing what he does best--making a
political claim. And the politics of this is very much in the free field."

Which brings us to this week. On Wednesday, Brown joined the mayors of
Oakland, Santa Cruz and West Hollywood in writing to President Clinton to
ask that the administration drop its federal lawsuits against six
California cannabis distributors and their 10 operators.

"I am deeply troubled by the Department of Justice lawsuits aimed at
shutting down medical marijuana dispensaries in our cities," Brown wrote.
"The harmful impact the closure of these patient clubs would have on
patient health and public safety cannot be overestimated."

The mayors asked in the letters that Clinton "drop the lawsuit and work
with state and local officials to find an amenable solution that will put
patients first. In the interim, I ask that you implement a moratorium on
enforcement of federal drug laws that interfere with the daily operation of
the dispensaries."

Brown has charged the local health department with overseeing the marijuana
clubs in concert with the district attorney's office. And when Hallinan
filed court documents Monday stating that the city would distribute
marijuana to patients if the clubs are closed down, Brown supported
Hallinan's position--although state Atty. Gen. Dan Lungren threatened
potential prosecution of city workers.

While campaigning for governor in Sacramento, Lungren said: "All I know is
that I took an oath to uphold the law . . . and I would hope San Francisco
officials do the same. . . . I don't know how you can say . . . because I'm
an elected official I don't have to do what everybody else does."

But in his weekly news conference Tuesday, Brown said that Hallinan was "on
the right track." In addition, he said, the health department is "ready to
put the [distribution] operation together."

One big question remains: Just how far will official and unofficial San
Francisco go to protect the availability of medical marijuana?

Hallinan's answer is the elliptical, "What we do we will do with the advice
of the city attorney and in a way that we believe is legal."

Ammiano is a little more forceful but no more revealing: "I think we'll go
to the mat on this."

Copyright Los Angeles Times