CALIFORNIA MEDICAL MARIJUANA DISTRIBUTORS UNDER FIRE

Scott Imler decided to starve himself to death this summer to protest
federal drug enforcement action against a cannabis club. After five days,
he decided his death wouldn't provide an answer to his problems. Neither,
so far, have the courts or law enforcement, which are locked in a death
grip over the right of terminally or chronically ill patients to smoke
marijuana, as provided by a state law and prohibited by the federal government.

Federal agents raided the West Hollywood headquarters of the Los Angeles
Cannabis Resource Center on Oct. 25, 2001. They seized the club's
computers, medical files, bank accounts and inventory -- 400 plants and 10
pounds of harvested pot to serve the palliative needs of more than 900
medical patients, 90 percent of who suffer from cancer or AIDS. Imler uses
medical marijuana to diminish his suffering from post-traumatic epileptic
seizures. He had worked closely with city officials to set up the center
and had earned a reputation among advocates as a stickler for detail who
closely adhered to the mandates of local law enforcers.

Within seven months, Imler learned he was under federal investigation for
distribution of drugs. The Drug Enforcement Agency and the Internal Revenue
Service had filed federal forfeiture actions against the center's $1.2
million building and its assets, including $55,000 in employee bank
accounts the feds had seized in the October raid. And, since the October
raid, 19 club members had died and more were slowly dying.

Some were willing to do so in public. On June 5, they began to fast, hold
demonstrations and conduct prayer services and vigils in the parking lot of
the Cannabis Resource Center, at the corner of Gardner Street and Santa
Monica Boulevard. Advocates for the use of medical marijuana hung a banner
on the center that read, "Shame on George Bush for the Los Angeles Cannabis
Resource Center's D.E.A.th."

The hunger strikers demanded that the feds cease the forfeiture action,
relent from prosecuting any of the center's employees and return all
property, confidential medical files and research data to the center. With
U.S. Attorney General John Ashcroft cracking down on cannabis clubs all
over the country, particularly in California, the strikers also demanded
congressional hearings to address the federal government's efforts to
squelch a movement that has led to legalized marijuana use for medical
purposes in nine states.

The hunger strikers gave speeches and held rallies through the weekend, for
five days, growing weaker by the day.

"I can vomit to death at home, alone, in silence, or stand with my friends
for patients who will come after us," said Roger Moore, an AIDS patient, on
June 7. "It is not a difficult choice to make." Pedro Jimenez, another AIDS
sufferer, stood next to a box full of pills and said that he takes 35
medications a day and injections to numb the painful tingling sensation
that shoots down his arms and legs as a result of a condition called
neuropathy.

The marijuana both alleviates side effects from the medications and
provides relief from his neuropathy, Jimenez said.

"Some days, it feels like razor blades are cutting into my skin," Jimenez
said, squinting into the afternoon sun. "Then, there's the diarrhea and
vomiting from AIDS medications."

Numerous local and state officials turned out to support the hunger
strikers, including state Assemblywoman Jackie Goldberg, D-Los Angeles, and
guest hunger striker Scott Svonkin, chief of staff for Assemblyman Paul
Koretz, D-Los Angeles.

U.S. Rep. Henry Waxman, D-Los Angeles, wrote a scathing letter to the U.S.
Department of Justice on June 6.

"This action makes absolutely no sense. It reflects the moral and
ideological views of zealots in the [Justice Department], instead of a
rational and clear-eyed evaluation of our most pressing national
priorities," Waxman wrote.

On June 9, drained of almost all energy from five days of nothing but
water, Gatorade and fruit juice, Imler and the hunger strikers decided to
break the fast. They felt like they had demonstrated their commitment to
the cause, but more important, they realized the time had come to start
saving their strength for what figured to be a long fight ahead. "If we
kill ourselves, we're just doing what the feds want us to do, and that's go
away," Imler said to the protesters who had gathered that Sunday afternoon.

Medical marijuana users -- mostly people with life-threatening conditions
- -- have reached a point of no return, Imler said, a showdown between the
sovereignty of the state of California to regulate the health of its
citizens and the authority of the federal government to regulate controlled
substances.

Proposition 215, the Compassionate Use Act, was passed by California voters
in 1996. It protects medical patients who use marijuana from state
prosecution if a licensed physician prescribes it. Yet the U.S. Supreme
Court, in 2001, upheld Ashcroft's authority to shut down cannabis clubs on
the basis that the federal Controlled Substances Act, which prohibits
distribution of marijuana, provides no exception for medical necessity.
U.S. v. Oakland Cannabis Buyer's Cooperative, 00151 (May 14, 2001).

Rather than definitively resolving a clash between state and federal law,
however, the justices left open a number of statutory and constitutional
issues and remanded the case to the 9th U.S. Circuit Court of Appeals.

Meantime, other cases in the federal appeals system have raised significant
constitutional issues that likely will head back to the high court, legal
experts say.

The most basic issue to be resolved begins with the First Amendment,
according to proponents of medical marijuana. In their minds, as medical
patients, they are just exercising their constitutional right to associate
freely in their cultivation and use of a drug that enables them to keep
down the mess of pills they must swallow each day. If smoking a joint or
two a day stimulates their appetite when they are undergoing chemotherapy
or wasting away from AIDS, they say, then consider it an exercise of their
due process right to be free from suffering and prolong life in a humane way.

And, advocates of compassionate use ask, just what is the federal
government doing sticking its nose in the state's regulation of medical
marijuana anyway?

It seems to them that the principles of federalism apply squarely to
medical marijuana as an issue of health care and public safety. The case
against the Cannabis Resource Center could raise any or all of these
issues, experts say.

Federal law enforcers don't see any merit to these arguments. Mere mention
of "medical cannabis" prompted a DEA agent based in Los Angeles to say
recently, "There is no such thing as medical cannabis. It's called
marijuana, and it is a Schedule 1 narcotic classified by Congress as an
illegal substance with no currently accepted medical use." Tens of
thousands of medical marijuana users and the California Medical Association
say the medical benefits are obvious, however. To the users, federal
enforcement actions targeting cannabis clubs are a heavy-handed exercise of
power by President Bush and Ashcroft that show the less compassionate side
of the conservative administration. "This is like an organizational death
penalty," Imler said of the federal forfeiture action, his voice cracking
slightly as he turned from the podium after calling off the hunger strike
June 9. "I don't know why we have to go through this. We are not criminals."

It is two months later, mid-August, and Imler, 44, a former special
education teacher from Santa Cruz, is sitting in his office at the Cannabis
Resource Center, which has been reduced to a telephone and a mailing list,
unless somehow he defeats the forfeiture action. He says he has gained a
little weight recently, but he remains rail-thin, an imposing figure at 6
feet 4 inches tall. Imler joined the medical marijuana movement after
sustaining a head injury in a ski accident in marijuana activist Dennis
Peron and attorney William Panzer.

It began as a buyer's club, he says, which supplied medical users with a
daily menu of pot, sometimes having to acquire it on the black market. But
he and his co-founders knew from the start that the risk of being shut down
was high. They wanted their club to be above scrutiny, particularly from
detractors who feared the influx of other drugs or infiltration by street
dealers.

So Imler consulted with lawyers, West Hollywood officials and former Los
Angeles County Sheriff Sherman Block, who supported the cannabis club.
Richard Odenthal, the former captain of the Los Angeles County Sheriff's
Department in West Hollywood and the director of public safety for the city
says, "We told them, as long as their operation was quiet, we were fine
with it. In the four years I was working with the Cannabis Resource Center,
we never had a single incident."

When he took office, Los Angeles County Sheriff Lee Baca supported the
center but wanted it to remain free of any black market dealings, Odenthal
says. To satisfy Baca's wishes, the center learned to grow its own plants,
and with the help of the Osburns, it soon became totally self-sufficient.

Baca would not comment for this story. In 2000, after Imler and several
founding members forked over a down payment of $150,000, the city of West
Hollywood co-signed a bank loan that allowed the center to purchase for
$1.2 million the building they had been leasing.

When the DEA shut it down last October, Imler says, the center had 10
full-time employees and 24 volunteers. It had generated $1.2 million in
revenue the previous year, which was put back into operating costs,
inventory and employee salaries, he says.

The center's only requirement for membership had been a doctor's
prescription, Imler says. After verifying that a prospective member had a
valid prescription from a licensed physician, the center would invite
applicants in for an "eye-to-eye" assessment, he says. The purpose of the
assessment was to weed out potential drug addicts or troublemakers, he says.

"We'd explain the rules and make sure they weren't tweekers," Imler says.
The center has a database with the names of 450 physicians who have
prescribed marijuana for their patients, Imler says. It eventually grew to
960 members, he says, and became a visible force in the community of West
Hollywood as well as a nationally recognized clinic, turning away almost as
many people as it accepted. "We didn't want to get too big and have a
volume of pot that would drive us back into the black market," Imler says.
"We rejected a lot of people." He laughs as he describes a live chat on The
New York Times' online Drug Policy Forum, in which a participant
characterized the center as "fastidious to the point of being persnickety."

"We developed a reputation as the strictest center in the country," he
says, "which was to the dismay of many in the advocacy movement. They
thought we were too engaged with law enforcement. They never trusted us.
"Well, now they do."

At its peak, the center had access to a total of 1,000 plants, Imler says.
"That's about one plant for each member," he says. "Lots of clubs operate
with a bigger inventory than that."

Before the raid, he says, whenever the center ran out of marijuana, they
would call the Osburns, who would drive down from Ventura with a fresh
supply, usually about twice a month.

"The cost initially was $3,200 per pound, but eventually, we negotiated a
reduced rate of $2,800 per pound based on the volume the members consumed,"
Imler says.

A single plant, depending on growing conditions, can yield between 8 ounces
and a pound, he says.

"We went through about 5 pounds per week, for 960 people," he says. Members
purchased the weed on a sliding scale, he says, because 30 percent were on
insurance disability and couldn't afford to pay. Others made contributions
as they drew pot from the system. The going rate was usually $50 for an
eighth of an ounce, Imler says. Observers say that Imler and the center are
squeaky clean and that criminal charges are unlikely.

"Federal prosecutors don't want to face a jury on this," one drug law
expert says.

U.S. Attorney Deborah Yang of the Central District did not return calls for
comment.

"They made sure they did everything right," says a lawyer familiar with the
group who requested anonymity. "They were doing what they were told to do
by the highest civilian law authorities in the state. They couldn't have
done a better job of setting it up."

Unfortunately, other cases may reach the U.S. Supreme Court before his,
Imler says. In his view, the Los Angeles Cannabis Resource Center, with its
solid reputation, is the best case to test a number of significant
constitutional issues before the high court, he says.

In January 1998, undercover DEA agents posed as medical marijuana patients
in a sting operation against the Oakland Cannabis Buyer's Cooperative.

Although the cooperative required the agents to show a doctor's
prescription -- which turned out to be phony -- the feds busted the
cooperative on the grounds that it violated the Controlled Substances Act,
which prohibits distribution of drugs classified by Congress as Schedule 1
narcotics.

The act classifies heroin, LSD and marijuana as Schedule 1 narcotics that
have a high degree of potential for abuse, lack an accepted medical use and
cannot be used for anything other than government-approved research. At
trial, the cooperative argued that marijuana is the only drug that can
alleviate severe pain and debilitating symptoms of patients who suffer from
cancer, AIDS and other illnesses that require intense medication with
numerous side effects and therefore is medically necessary for those patients.

U.S. District Judge Charles Breyer of the Northern District of California
rejected the defense of medical necessity and ordered the club to cease
supplying its members with marijuana.

After the cooperative continued distributing marijuana for medical
purposes, the 9th Circuit ordered the District Court to modify its order by
recognizing that medical necessity was a "legally cognizant defense."
Because the case raised significant questions as to the ability of the
federal government to enforce the nation's drug law, the U.S. Supreme Court
took up the issue and ruled, on May 14, 2001, that medical necessity is no
exception to the federal law.

Imler says that the center, not the Oakland Cannabis Buyer's Cooperative,
would have been better off arguing the medical necessity argument to the
Supreme Court because the center never got busted selling pot to undercover
DEA agents. Their record was clean, he says. "That's baloney," says Santa
Clara University Law professor Gerald Uelman, a drug law expert and one of
the cooperative's lawyers. "The problem wasn't with the facts, it was with
the U.S. Supreme Court." Having burned up the medical necessity defense, on
remand to the 9th Circuit, Uelman says the cooperative intends to rely on a
provision in the Controlled Substances Act that confers immunity on state
law officers engaged in the enforcement of any law related to a controlled
substance. Because the cooperative had the Oakland City Council and local
law enforcers behind it, he says, and because it was operating in
compliance with state law, the cooperative should be immune from
prosecution under federal law as state agents.

The cooperative has a number of other arguments it intends to raise, Uelman
says.

Some of the arguments are the same ones that Imler's lawyers will be trying
in federal District Court, Imler says. He is frustrated by the possibility
that higher courts may rule on these issues before his case gets the chance
to make new law.

"There are a number of constitutional issues that have never been addressed
by the Supreme Court or the 9th Circuit Court of Appeals," Robert Raich,
Uelman's co-counsel and the attorney who argued for the Oakland cooperative
before the high court in 2001, says. Raich, an Oakland attorney, points to
constitutional issues related to the Due Process Clause, the Commerce
Clause and the 10th Amendment, which leaves to the states all powers not
reserved by the federal government.

"Under the Due Process Clause, you have the sanctity of the
physician-patient relationship and the right to be free from pain, to
prolong life and to ameliorate suffering," Raich says. "Then, under the
Commerce Clause, the federal government cannot regulate anything that is
not interstate commerce. Medical cannabis is not commerce, but even if it
is, it is sold intrastate.

"And then, under our system of dual sovereignty, there's the state's right
to regulate health care. And the voters of California have indicated that
they want patients to have access to cannabis for medical purposes."
Because the 9th Circuit could rule on issues of law that Imler and the
Cannabis Resource Center could be raising in U.S. District Court, legal
experts see the center's case as problematic for federal prosecutors and
for Real. "This is an unusual case," one expert says. "It's unique in a
meaningful way. This is a case that could come back to haunt the [District
Court]. The facts are like a professor drew them to bring this thing to a
clash on constitutional grounds.

"But there may be alternative remedies rather than a head-on clash over
state-federal law."

The possibility of alternative remedies arises from the Supreme Court
opinion in Oakland Cannabis Buyer's Cooperative, Uelman says. In that case,
the high court ruled that the only exception to the Controlled Substances
Act is for clinical trials by a federally approved medical research body.

Imler says the center would gladly apply to become a subject for medical
research related to marijuana use and life-threatening illnesses. "We'd be
happy to participate in federally approved research," Imler says. "Let the
academics come in and crunch data. We've proven that we can keep complete
records for the last five years. I can account for every flake of pot that
has come through this place." Until such a day comes, however, Imler and
his fellow members of the Los Angeles Cannabis Resource Center are walking
a fine line between state and federal law while trying to keep down their
food or keep from seizing up in public.

Once in a while, a member stops by to see how the case is progressing,
Imler says.

"I saw Pedro [Jimenez] the other day, he's still hanging in there," Imler says.

Jimenez has been HIV-positive since 1986 and has AIDS. One time, after he
could not hold down solid food for 44 days, the disease began to attack his
gall bladder, and he almost died, he said. "The side effects from the drugs
are so fierce that I need cannabis as much as I need the other
medications," Jimenez says. "People see these new drugs for HIV on the
glossy pages of magazines and think we can climb a hill.

"Maybe in a wheelchair."