Medical marijuana remains in legal limbo

November 09, 2006

Jeff MacDonald, San Diego Union Tribune

Paul Cody has titanium rods jutting up either side of his spine. Without them, he couldn't sit upright in his wheelchair.

Over the years, doctors prescribed Vicodin, Valium and a medicine chest of other drugs to soothe his constant pain, but the narcotics killed his appetite and kept him awake at night. Until he started smoking marijuana, Cody could barely sit still for a movie.

Ten years ago, 56 percent of California voters decided that people with medical problems like Cody's should be able to grow and smoke marijuana on their physician's recommendation.

But the potential of Proposition 215, which conflicts squarely with federal laws that classify marijuana among the most dangerous drugs, has never been realized.

Thousands of California patients have no legal access to medical marijuana. Thousands of others worry they may be found out and arrested for cultivating too many plants or storing too much dried pot, because most cities and counties haven't passed the laws needed to regulate the dispensation of marijuana used for medical purposes.

Unscrupulous and profit-minded dispensary operators have taken advantage of the absence of uniform rules, opening storefronts anywhere they can and selling marijuana to unqualified patients.

Two years ago, drug agents raided Cody's house in Jamul and uprooted his tiny garden.

“They took 'em – three lousy plants,” said Cody, 32, who was paralyzed in a 1991 motorcycle crash. This year, he harvested his modest crop weeks before it matured for fear of losing it to another bust.

It was no secret that most of the law enforcement community opposed the medical use of marijuana when the issue landed on the state ballot in 1996.

Lesser known, however, is the detailed and coordinated assault many federal, state and local officials conducted once it passed.

In the past decade, police departments in dozens of California cities have joined federal drug agents in more than 100 raids on medical marijuana farms, cooperatives and dispensaries.

After a July sweep across San Diego County, U.S. Attorney Carol Lam and San Diego County District Attorney Bonnie Dumanis used a news conference to issue a warning to dispensary operators: Close or face the consequences. They all closed, and the local marketplace for medical marijuana dried up almost overnight.

Three San Diego County supervisors are so strongly opposed to Proposition 215 that they voted to sue the state to try to overturn medical marijuana laws rather than implement them. Oral arguments in the case, which was driven by Supervisors Bill Horn, Dianne Jacob and Pam Slater-Price, are scheduled to begin this month.

Ten states have joined California in passing medical marijuana legislation, and public opinion polls show that respondents favor medical use of marijuana by 3 to 1.

Yet no one has come up with a way to resolve the impasse between states and the federal government, which can impose criminal penalties for what the states have made legal.

“It's a study in politicians evading the will of voters, which they do not agree with,” said Mark Bluemel, an attorney who has defended medical marijuana patients. “We have San Diego being among some rogue counties that refuse to obey this law.”

But Horn, chairman of the county Board of Supervisors, said the state has put cities and counties in an impossible position.

“I'm not going to enact a state law that's in violation of federal law until I hear from a judge that it's legal,” he said. “I'm not necessarily challenging the will of the people.”

State politicians also contributed to the failure to implement Proposition 215. It took seven years to get clarifying legislation through the statehouse and signed into law by the governor.

When Senate Bill 420 finally went into effect on Jan. 1, 2004, it established statewide guidelines outlining the number of marijuana plants a patient could legally grow and directed county health departments to issue identification to qualified patients so police would know when drug use was legitimate and when it was being abused.

But by a measure of nearly 4 to 1, California cities have chosen to outlaw pot dispensaries rather than to regulate them. In communities such as San Francisco, Santa Rosa and Santa Cruz, which have all embraced Proposition 215, elected leaders say the dispensary model has worked fairly well.

Government officials didn't waste any time reacting to the passage of Proposition 215.

Hours after polls closed Nov. 5, 1996, former state Attorney General Dan Lungren, now a congressman from Gold River in Northern California, sent a memo to every district attorney, sheriff and police chief across the state.

The three-page letter laid out what would become the standard for dealing with Proposition 215. It advised police and prosecutors to judge marijuana cases on the basis of whether suspects could reasonably cite medical need as a defense at trial – a legal position called an affirmative defense – rather than simply letting them go if their paperwork was in order.

“We were confronted with both the underlying law (prohibiting marijuana) and the proposition,” Lungren said in a recent telephone interview. “We were trying to inform law enforcement officers what would be proper conduct.”

Two weeks later, Lungren and the attorney general of Arizona, which had also passed a medical marijuana initiative, warned their counterparts across the country to be wary of the rising medical marijuana movement.

On Dec. 6, local, state and federal officials convened a strategy session in Washington to deal with the Arizona and California propositions. The meeting focused on ways to undermine the voter-approved initiative, including going after physicians who recommended the drug, establishing a national group to fight legalization of marijuana and calling a special election to repeal the law in California.

Records of the session contend that medical marijuana supporters seek to “legitimize illicit drug use through 'medicalization' approach” and take the effort nationwide.

Three days later, another memo from Lungren's office to federal drug enforcement officials clarified that local police officers could arrest people suspected of breaking federal law.

Medical marijuana proponents complain that government officials deliberately undercut Proposition 215 as soon as it passed.

“Once they came up with affirmative defense as a legal interpretation, it was game, set and match,” said Patrick McCartney, a medical marijuana activist and freelance journalist who has compiled an extensive history on the government response to the growing political movement.

“If law enforcement who were so inclined could arrest and prosecute qualified medical marijuana users, then what did voters vote on?” McCartney wondered.

Legal scholars question the federal government's role in medical marijuana debates within individual states. Several believe U.S. drug agents should enforce federal laws but also respect state rights.

However, the Drug Enforcement Administration has recruited local agencies to join task forces that continue to raid dispensaries and cooperatives.

“The California medical marijuana law created an exception to California law, but could not do so for federal law,” said Erwin Chemerinsky, a constitutional law professor at Duke University. “I wish federal authorities would use their discretion to respect the California initiative, but they clearly have not done so.”

Gerald Uelman is a Santa Clara University law professor who is awaiting an appellate decision on a medical marijuana lawsuit he is fighting on behalf of the city and county of Santa Cruz. Those two governments have led many of the efforts to implement Proposition 215.

Uelman said federal authorities “crossed the line in their effort to impose their agenda” on state officials.

“This is still an issue where the politicians are behind the curve, in terms of the will of the voters,” he said. “That's true across the board, not just in California.”

Jessica Reeves lives in a Hillcrest studio and usually relies on friends to get the marijuana she needs to relieve her constant pain. Sometimes she drives to dispensaries in Riverside County or in Los Angeles that have not yet been raided.

Two years ago, the 29-year-old medical assistant contracted necrotizing fasciitis, the flesh-eating bacteria. Doctors saved her life, but she lost much of her right arm.

Nineteen operations later, Reeves said smoking pot is the only thing that helps her live a near-to-normal life.

“When I turned 18, I voted for Proposition 215,” she said. “I didn't know 10 years later that I would need it. Now I can't get it because they closed all the dispensaries down.”


Jeff McDonald: (619) 542-4585;

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