GRAY AREAS

Conflicting Laws Lead to Arrests, Confusion

California voters passed Proposition 215 - permitting the medical use
of marijuana - more than a decade ago.

In some parts of the state, use of the drug is readily accepted by
local governments and police departments, with dispensaries and
doctors specializing in marijuana openly advertising their businesses.

Such is not the case in the Inland Empire, where medical-marijuana
users, dispensers and growers generally face hostile local
governments and police departments.

In San Bernardino County, sheriff's deputies are instructed to arrest
medical-marijuana users for possession even if they produce a
state-sanctioned ID card proving their status as a medical user.

Medical-marijuana dispensaries that have opened without the blessings
of local governments have been raided, sued and faced with ordinances
barring them from those communities.

Much of the chaos surrounding medical marijuana in the Inland Empire
results from ambiguous state laws, conflicts between state and
federal law, and the relative newness of the program.

Following Federal Law

Although the laws governing the medical use of marijuana were passed
at the state level, they are largely implemented and enforced at the
county level.

Among local counties, San Bernardino County has the worst record in
dealing with medical marijuana, activists say.

"I have heard numerous stories about tough cops in San Bernardino
County," said Dale Gieringer, director of the California branch of
the National Organization for the Reform of Marijuana Laws.

"People commonly hear that story from the cops: 'I'm going to arrest
you and let the courts sort it out. We enforce federal law here."'

The federal government recognizes no medical use for marijuana and
does not acknowledge California's medical-marijuana program.

Senate Bill 420, passed in 2003, established a state system that
requires county health departments to issue ID cards to those
authorized to use marijuana for medical reasons. Los Angeles and
Riverside counties have set up their systems; San Bernardino County has not.

The system was designed to prevent medical-marijuana users from being arrested.

San Bernardino County does not recognize cards issued by neighboring
counties, and sheriff's deputies arrest medical-marijuana users who
would not be arrested in Los Angeles or Riverside counties.

"The sheriff believes that marijuana is illegal," said Cindy Beavers,
a spokeswoman for the San Bernardino County Sheriff's Department.
"There is a federal law that prohibits the manufacturing, sale or use
of marijuana, and he does not allow his deputies to accept the
medical-marijuana cards."

Lanny Swerdlow, director of the Marijuana Anti-Prohibition Project,
was an early advocate for medical marijuana. The Palm Springs
resident is particularly knowledgable about medical marijuana in San
Bernardino and Riverside counties.

San Bernardino County was ready to issue medical-marijuana ID cards
in early 2006, Swerdlow said, but the effort was halted by the Board
of Supervisors when the county joined San Diego County's lawsuit
against the state, filed because of the medical-marijuana program's
conflict with federal law.

Patients arrested in San Bernardino County who have a doctor's
recommendation are able to present evidence of that in court, said
San Bernardino County Deputy District Attorney Michael Abacherli.

"As long as they have a doctor's medical recommendation, we do not
prosecute those cases, because they are excepted," he said. "However,
if the recommendations are not in proper form, or they have more than
the allowed amount, then we do (prosecute)."

The county's Probation Department takes the position that anyone on
probation cannot legally possess marijuana even if they have a
doctor's recommendation.

Dispensaries Face Resistance

Medical-marijuana users can legally grow marijuana for their own use,
but setting up such an operation takes space, time and money that
many users do not have.

Most depend on other sources. The most common are medical-marijuana
dispensaries, which provide products to users who have a doctor's
recommendation.

Until about two years ago, there were no dispensaries in the Inland Empire.

When they started arriving - in Claremont, Pomona, Norco and Corona -
they were met with immediate resistance from local governments.

In those four cases, the dispensaries initially approached cities,
seeking business licenses and were turned away. They were told that
no regulations were in place allowing that type of business.

"They come and apply for a business license and try to do the right
thing, and the city doesn't allow them to," Swerdlow said.

Thinking they had state law on their side, the dispensaries opened
anyway. All four now are mired in legal battles with the cities in
which they opened.

The Claremont and Norco dispensaries are closed pending the outcome
of court cases. The dispensary in Corona was raided and shut down in
July by federal authorities. And the operator of Pomona's dispensary,
Dave Touhey, was arrested in June during a raid of his dispensary.

As the legal issues hit front pages last year, most local cities
passed bans and moratoriums on dispensaries, effectively blocking any
possibility of others opening in the area. Most recently - just last
week-the Norco City Council approved an outright ban on
medical-marijuana dispensaries in that city.

The exceptions are Diamond Bar, which allows one dispensary, and
Claremont, which in July gave initial approval for a dispensary to
open in the city.

Abacherli said many of those who run dispensaries claim to be doing
so out of compassion. A closer examination of their finances
indicates that's not the only reason, he said.

"A lot of these people are profiting off of ill people," he said.
"We're after the people who are taking advantage of those people, or
taking advantage of the laws as they stand on the books right now."

Ambiguity Creates Problems

In discussing the state's medical-marijuana program, activists,
police and government officials can usually agree on only one thing:
The state's medical marijuana laws are poorly written.

Proposition 215, approved by voters in 1996, stated in general terms
that people who have a medical need for the drug can use it legally.
The full text of the law runs less than 400 words.

State officials quickly learned that the brevity of the law was
problematic for medical-marijuana users and police, who in the
absence of clear direction from the state were clashing over the most
basic rights of medical-marijuana users.

A law designed to clarify the proposition, Senate Bill 420, was
passed in 2003. It clarified the amount of marijuana a person can
possess for medical purposes, and set guidelines for an ID-card program.

But much was still missing: guidelines for the operation of
dispensaries, and rules for cultivating the drug in large quantities
for medical purposes.

The ambiguity has allowed cities and counties to selectively enforce
the guidelines of the program, medical-marijuana activists say.

The dispute is made worse by the state law's conflict with federal
law, which is often cited by local governments needing a reason to
crack down on medical marijuana.

"We believe that the law is poorly written," said San Bernardino
County sheriff's Lt. Greg Garland, head of the department's Narcotics
Bureau. "It makes it very unclear what's legal and what's not legal.

"For people who are trying to work within the parameters of what the
state is trying to do for the citizens, it doesn't give them enough
direction on how to legally obtain and use marijuana.

"On our side of the fence (police), it doesn't specifically state how
we determine if somebody is making a profit. How do we show that they
are or they aren't?"

One apparent casualty of the law's ambiguity is Paul Shaw, arrested
in May along with two other men in connection with a warehouse in
Azusa that was filled with marijuana plants.

In a jailhouse interview shortly after his arrest, Shaw said the
marijuana was being grown strictly for medical purposes. It was sold
and sometimes given away to only dispensary operators, individual
users and caretakers.

Darrell Kruse, former operator of a dispensary in Claremont, said he
once purchased marijuana from Shaw's warehouse.

Shaw and the other men running the grow operation believed that
because the marijuana was being distributed only to medical users,
they were legally permitted to grow it.

But because S.B. 420 does not directly address the limits that can be
placed on growing medical marijuana, Shaw is facing felony cultivation charges.

Activists say that for dispensaries, there are few other viable
alternatives to acquire marijuana, making a large-scale grow
operation a natural development in the still-young medical marijuana industry.

"There is no such thing as a legal grow house, so of course
medical-marijuana dispensaries are getting their marijuana from
illegal sources," said Swerdlow. "The government is creating the problem."

[sidebar]

ABOUT PROPOSITION 215

The following is the text of Proposition 215:

Section 1. Section 11362.5 is added to the California Health and
Safety Code, to read:

11362.5. (a) This section shall be known and may be cited as the
Compassionate Use Act of 1996.

(b) (1) The people of the State of California hereby find and declare
that the purposes of the Compassionate Use Act of 1996 are as follows:

(A) To ensure that seriously ill Californians have the right to
obtain and use marijuana for medical purposes where that medical use
is deemed appropriate and has been recommended by a physician who has
determined that the person's health would benefit from the use of
marijuana in the treatment of cancer, anorexia, AIDS, chronic pain,
spasticity, glaucoma, arthritis, migraine or any other illness for
which marijuana provides relief.

(B) To ensure that patients and their primary caregivers who obtain
and use marijuana for medical purposes upon the recommendation of a
physician are not subject to criminal prosecution or sanction.

(C) To encourage the federal and state governments to implement a
plan for the safe and affordable distribution of marijuana to all
patients in medical need of marijuana.

(2) Nothing in this act shall be construed to supersede legislation
prohibiting persons from engaging in conduct that endangers others,
nor to condone the diversion of marijuana for non-medical purposes.

(c) Notwithstanding any other provision of law, no physician in this
state shall be punished, or denied any right or privilege, for having
recommended marijuana to a patient for medical purposes.

(d) Section 11357, relating to the possession of marijuana, and
Section 11358, relating to the cultivation of marijuana, shall not
apply to a patient, or to a patient's primary caregiver, who
possesses or cultivates marijuana for the personal medical purposes
of the patient upon the written or oral recommendation or approval of
a physician.

(e) For the purposes of this section, primary caregiver means the
individual designated by the person exempted under this act who has
consistently assumed responsibility for the housing, health or safety
of that person.

Sec. 2. If any provision of this measure or the application thereof
to any person or circumstance is held invalid, that invalidity shall
not affect other provisions or applications of the measure which can
be given effect without the invalid provision or application, and to
this end the provisions of this measure are severable.