CANNABIS AND THE COPS

An injunction that might or might not wind up closing the Cannabis
Cultivators Club in San Francisco highlights the need for local governments
to develop policies that make it possible for medical patients to acquire
cannabis or marijuana legally, in line with state law.

Two court rulings are relevant here. Last week San Francisco Superior Court
Judge David Garcia issued an injunction against the principals of the San
Francisco club in response to a request filed by state Attorney General Dan
Lungren's office.

Judge Garcia based his injunction on a December 12 ruling by the First
District Court of Appeals that said Prop.215, passed by voters in 1996,
does not overrule other state laws prohibiting possession or sale of
marijuana.

John Gordnier, a state senior assistant attorney general, told reporters
that he expected that all the cannabis clubs in the state would be shut in
wake of the December appellate ruling.

Not so fast. A close reading of both rulings shows that the judicial
decisions were not black-and-white.

The December 12 appellate decision actually affirms the legitimacy of Prop.
215 and suggests guidelines for government and "primary cargivers." Judge
Garcia's injunction reflects an understanding of the fact and actually
offers the club an opportunity to stay in operation. As of Monday, the club
had not closed its doors. The ruling says that Dennis Peron and Beth Moore,
who run the club "are enjoined from selling, furnishing, storing,
administering or giving away marijuana," which sounds unambiguous. But it's
preceded by the statement "except as provided in (2) and (3)."

Paragraph (2) says the two may possess marijuana for personal use if they
have a doctor's recommendation. Paragraph (3) says: "Each of the defendants
may, as to a person with whom he or she has the relationship of a bona fide
primary caregiver ... provide to that person without receiving anything in
return, a quantity of marijuana consistent with the physician's recommended
dosage..."

So as long as they're not actually selling marijuana directly but giving it
away, they apparently can continue operations.

Mr. Peron told us Monday that he believes the club's legal position is
soled. "We're not selling cannabis, and our bookkeeping reflects this," he
told us. "We do charge for the service of acting as designated primary
caregiver to our members."

The December 12 appellate decision does appear to give the club legally
defensible ground.

That decision said, for example, that "the trial court thus concluded ...
that the thousands of persons who patronized respondents' club, who advised
that a physician approved their marijuana use, and who designated
respondents or their Cannabis Buyers Club as their 'primary caregiver'
conferred that status on respondents."

The appellate court further noted that "although the sale and distribution
of marijuana remain as criminal offenses ... bona fide primary caregivers
for ... patients should not be precluded from receiving bona fide
reimbursement for their actual expense of cultivating and furnishing
marijuana for the patient's approved medical treatment."

This is sensible. Prop. 215 did not try to eliminate laws against marijuana
sale and possession, but to create a narrow exception for medical patients
with a doctor's recommendation. It directed the government to facilitate a
safe and affordable way for patients to get this substance. That's
important because otherwise patients will have to rely on the illegal black
market.

A very few local governments have tried to set up such a system. But it
seems that every time someone tries to do it legally, the state attorney
general's office tries to close them. This doesn't seem consistent with
conscientiously trying to carry out the clearly expressed will of the
people.