MARIJUANA MAYHEM

California patients' rights to medical marijuana may go up in smoke if
feds get their way

When quiet, unassuming Donovan No Runner decided to smoke marijuana on the
steps to the San Luis Obispo County courthouse last month, he sparked more
than a joint ... he may have ignited a strategically vital state's rights
battle with imminent national consequences.

At stake could be no less than the very future of the U.S. government's
expensively accelerating campaign against drugs, with its renewed emphasis
on stubbing out smoking-quality hemp and dousing the weed's reputedly
growing threat to the fabric of 21st century society.

No Runner, 23, of Grover Beach, was cited for his open use of pot by SLO
police, but charges were dropped after San Luis Obispo County Superior Court
Judge Barry LaBarbera determined that No Runner's medical prescription was
legitimate. LaBarbera, a former county district attorney, also ordered the
police department to return the 8.2 grams of marijuana to No Runner.

Police Chief Jim Gardiner balked, claiming such an action would force his
department to break federal law. City Attorney Jeff Jorgensen now has joined
forces with District Attorney Gerald Shea to challenge LaBarbera's order.

LaBarbera hears arguments Thursday in Division Two at the county courthouse,
and both sides have promised to appeal an unfavorable decision by the
one-time chief prosecutor.

In either case, an appeal assures ongoing judicial scrutiny of whether the
state of California can affirm a patient's right to use medical marijuana in
opposition to federal law.

As a flash point for argument, pot's hot.

The No Runner case, and others like it, promises to focus intense scrutiny
on an issue that is rapidly drawing even with segregation, slavery, and
civil rights as a benchmark social conflict with far-reaching implications
for states' rights.

Pot as an issue is nothing new. What is new is the drug's emerging status as
an effective substance in the treatment of symptoms with life-threatening,
and often painful, diseases and conditions. What is even newer is the fervor
with which Uncle Sam has been combating the creeping acceptance of marijuana
as a drug more benign than deadly, more therapeutic than dangerous, largely
devoid of the huge physical, mental, and social threats ascribed to it by
decades of law enforcement sanctions against its use and possession.

It is this nation's reported apathy toward strict enforcement of most
marijuana laws that has the federal government's shorts in a twist.

Somewhere along the line, a majority of Americans seems to have accepted
marijuana as a substance which doesn't warrant categorization with heroin,
cocaine, and methamphetamines. That seems to put a majority of citizens in
direct conflict with federal laws that criminalize the use of pot for
humanitarian, health-related reasons.

Like a wispy trail of smoke drifting toward an oscillating ceiling fan, the
conflict between California and the federal government on the matter of
medical marijuana use is dissipating into local judicial venues, where only
hazy confusion awaits.

For decades, marijuana has been the poor stepchild in the nation's enduring
"war on drugs," its purveyors deep down on the priority list for narcotics
agents who were drawn to more glitzy drug busts involving heroin or cocaine
or meth. That's where the big newspaper headlines lay, and where the
all-important golden property confiscations could be had.

Marijuana smugglers big and small, on the other hand, were long considered
small fry in the drug-busting world. CNN and Fox News didn't show up to take
note of bales of hay-like weed, preferring to showcase those situations
where stacks of coke and cash and an array of heavy weapons could be
videotaped.

That was prior to government drug enforcement agencies' relatively recent
recognition that somehow, over a period of years, the citizenry had become a
little soft on nature's high.

Even as this realization was sinking into the conscience of U.S. law
enforcement, a proliferation of attempts were being made by pro-pot forces
to legalize, or at least decriminalize, the limited, personal use of
marijuana.

Voters on Nov. 5 considered, then rejected, such actions in several states,
including Nevada and Arizona. But the swirl of electoral activity has been
enough to jostle the federal government back into action as attentive pot
police, with a mandated priority from the U.S. Department of Justice to stem
the nation's apparently growing comfort with the concept of cannabis.

When California voters embraced the 1996 proposal to allow medical patients
with physicians' prescriptions to use marijuana without encountering
prosecution, there were those observers who thought the issue was settled.
There were just as many doubters who believed that Proposition 215 would not
hold up against an anticipated onslaught of federal opposition.

In fact, both sides have been correct. Many users of prescription pot do so
these days without fear of legal repercussions, particularly in California
and the other six states that allow its use in prescribed situations.

Like several other states, California has initiated a "Patients' Bill of
Rights" to guide the conduct of physicians and other medical personnel in
addressing severe pain in patients.

California's official policy regarding pain, as quantified by the
Intractable Pain Treatment Act, appears clear in its intent:

"Inadequate treatment of acute and chronic pain originating from cancer or
non-cancerous conditions is a significant health problem," reads a key
portion of the document. "For some patients, pain management is the single
most important treatment a physician can provide. A patient suffering from
severe chronic intractable pain should have access to proper treatment of
his or her pain."

Humane treatment of people wracked by pain is paramount under the state's
own official policy, giving to the patient latitude in guiding his or her
own treatment.

The Patients' Bill of rights further notes that "a patient suffering from
severe chronic intractable pain has the option to request or reject the use
of any or all modalities to relieve his or her severe chronic intractable
pain."

And it sets forth in lucid terms the duties of physicians:

"A physician treating a patient who suffers from severe chronic intractable
pain may prescribe a dosage deemed medically necessary to relieve severe
chronic intractable pain as long as the prescribing is in conformance with
the provisions of the California Intractable Pain Treatment Act, Section
2241.5 of the Business and Professions Code."

Recently, the U.S. Supreme Court ruled that physicians who prescribe the use
of marijuana for legitimate medical purposes under existing state law cannot
be prosecuted by the federal government for their actions.

That decision was vital to the continuation of progress for pro-pot
interests, because physicians fearful of official retaliation would likely
stop writing marijuana prescriptions. The chilling effect alone would have
widely threatened pot's use for medical reasons.

On the other hand, the interest shown by federal prosecutors in preventing
even limited marijuana use lately has been widening, portending a more
restrictive environment in days ahead for those who self-medicate with THC.

A quick look at the numbers underscores reasons for the wide uncertainty.

According to a Time/CNN poll published early this month, 80 percent of
Americans agree with the dispensing of marijuana for medical purposes. The
same poll suggested that 72 percent of the people think small amounts of pot
should be punishable only by a fine, 47 percent have tried pot, and 34
percent would like to see pot completely legalized.

Despite the seemingly overwhelming sentiment against punishing people for
medical application of pot, there are huge impediments to significant
changes in the law.

Initially, there is persistent, heavy lobbying by the drug enforcement
community seeking to protect its unique economy and the hundreds of
thousands of jobs prohibition provides.

Politically active and potent organizations like Mothers Against Drunk
Driving worry about impaired operation of motor vehicles.

Then, there is opposition from former pot smokers who have joined the middle
class and fear their children will suffer by exposure to the drug, even
though their parents might have gotten through their experimentation without
calamitous results.

There is an ingrained resistance on the part of many in law enforcement,
schools, and other governmental entities. They feel that pot use, if
sanctioned, will lead to greater use of more powerful narcotics-the
so-called "gateway drug" argument.

Although combatants often are pigeonholed as "anti-pot conservatives"
against "pro-pot liberals," the controversy readily spreads like a waft of
aromatic smoke across ideological lines.

Six years ago, one of this country's leading conservative voices, William F.
Buckley Jr., offered his opinion about softening opinion regarding medical
pot's use: "The informed public is gradually willing to acknowledge a
difference between marijuana and more lethal drugs," wrote Buckley. "It has,
however reluctantly, acknowledged that marijuana can have therapeutic uses,
in particular to bring relief to those suffering from radiation or
chemotherapy treatments for cancer. There is a gradual awakening of the
moral sensibilities of the alert members of the public."

Conversely, many leading liberals, particularly those in policy-setting
posts, eschew supporting the drug, perhaps out of fear of political backlash
within their home districts.

The position adopted by Rep. Lois Capps, D-Santa Barbara, for example,
stated during her recent, successful campaign against the GOP's Beth Rogers,
falls on the side of law enforcement.

"On issues like this, we seek local expertise in the form of law enforcement
and medical advice," said Capps, a teaching nurse before her appointment and
reelection to Congress. "I think about young kids a lot when I think about
any kind of substance that could be abused," she added during a campaign
interview with New Times. "My policy of not supporting the use of medical
marijuana came from law enforcement, basically from them saying that it's a
step through the door. They would tell me of instances where it led to
further abuse behavior and the actions that we try so hard to prevent.

"But I'm also very mindful of the importance of local control," Capps added.
I'm of a very open mind about it, so let's put it this way: I don't want to
let go of my initial stance, and believe me, I've been challenged by many,
many of my good friends who are constituents. I've always said I'll keep
reading the material, so keep talking to me. You know, democracy is a
process, legislation is definitely a process, and it's also a kind of a
compromise of one interest to see what the right stance is that should be
taken. I would love to see us find this perfect world where things like this
can exist side by side."

The "gradual awakening" mentioned by columnist Buckley, meanwhile, does not
apply to U.S. law enforcement. Examples abound of federal lawmen's raids on
medical marijuana clinics in California and elsewhere.

Intoning their belief that federal laws always transcend the wishes of any
state, Drug Enforcement Agency cops several months ago made a particularly
visible raid on a medicinal pot clinic in Santa Cruz after local police and
sheriff's deputies declined to intervene in sales to sick people.

And DEA Administrator Asa Hutchinson has promised more of the same:
"Cultivation, use, distribution, and possession of marijuana remain unlawful
regardless of any 'medical' justification under state law," he wrote in a
September letter to California Attorney General Bill Lockyer. Lockyer, who
supports the voters' mandate of Proposition 215, had directed criticism at
DEA's enforcement policies.

Citing a U.S. Supreme Court decision earlier this year, Hutchinson opined
that medical necessity is not a defense to manufacturing and distributing
marijuana. That case, in which the federal government prosecuted the Oakland
Cannabis Buyers' Cooperative and won, gave U.S. lawmen a stronger stick with
which to enforce the notion that marijuana truly is the "killer weed" of
yesteryear's lore.

Proposition 215, argued federal lawyers, addresses only the use of pot by
patients, not the growing or distribution of the substance-whether or not a
prescription is involved.

California's high court previously unanimously held that the legal standard
should be that defendants who wish to raise a medical marijuana defense need
only "raise a reasonable doubt" that such use is medically valid. This major
change shifts the burden of proof from the defendant (who used to have to
prove their medical use was valid) to the state, which now must prove beyond
a reasonable doubt that the claimed medical use is invalid.

The enthusiasm with which San Luis Obispo City Attorney Jorgensen and
District Attorney Shea have embraced the No Runner "return the pot" standoff
exemplifies the renewed aggression of law enforcement regarding cannabis.

When Police Chief Gardiner raised his objections to giving No Runner's stash
back, Shea's reaction was swift: He immediately asked LaBarbera to withdraw
his order, based on the belief that he would be "distributing marijuana" by
complying with the order.

San Luis Obispo Police Capt. Bart Topham added, "When we heard about it [the
order to return No Runner's pot], we pointed out the potential problem to
the district attorney's office, and the district attorney pointed it out to
the court. All we are interested in is that the court make its decision
based on the facts."

Topham said he called Deputy District Attorney Steve Brown and "asked for
clarification of the law."

Jorgensen's more recent entry into the fray signals a unification of law
enforcement muscle ostensibly aimed at dampening enthusiasm in this county
for medicinal marijuana use.

Jorgensen, representing the city of San Luis Obispo, and Gardiner, said in
his brief to LaBarbera that "the court's order [to return the pot] may place
Gardiner in the unenviable position of violating federal law, or facing an
order to show cause regarding contempt of court."

After several motions were filed by both sides, LaBarbera decided to give
the matter a little more thought. His eventual ruling, and the results of
promised appeals, may have a significant impact on implementation of the law
in months and years ahead.

No Runner's lawyer, Louis Koory of San Luis Obispo, who said he once thought
the case would be "a slam dunk" for No Runner, now isn't so certain about
the eventual results.

"It appears that local law agencies have decided to put their efforts into
enforcing federal statutes," said Koory. "That's strange, because their job
is to enforce local and state laws."

In a most uncertain circumstance, one thing is clear: The dispute, headed
almost certainly for protracted litigation, will be completely financed by
local taxpayers ... most of whom, according to the pollsters, disagree with
the objectives of Gardiner, Shea, and Jorgensen.