Enforcement of '96 state measure differs widely

February 21, 2004

Jeff McDonald , San Diego Union-Tribune

Police at Lindbergh Field cited a passenger who volunteered to security guards that he was carrying a small bag of pot, even though the man appeared to meet city-approved medical marijuana guidelines. gif' width=2 border=0>

In the Central Valley farm town of Chowchilla, police defied a judge's order to return nearly a pound of marijuana to a patient who was acquitted of possession charges. Eight months later, the man is still waiting.

San Diego Police Chief Bill Lansdowne told the City Council his officers would not participate in any more federal raids on medical marijuana users. In the tug of war between state and federal drug laws, Lansdowne was siding with California.

These cases, and a growing number of others like them, illustrate the huge disparity in the enforcement of Proposition 215, the 1996 initiative allowing sick and dying people to use and grow marijuana.

Ignored by some and embraced by others, the law has mired police, prosecutors and other law enforcement agencies in deep conflict. Even some officials of the federal government, which classifies marijuana as a dangerous narcotic with no medicinal value, admit they do not have time to deal with medical pot users.

'It's not our job to look for drugs,' Transportation Security Administration spokesman Nico Melendez said when asked about the Lindbergh Field passenger. 'It's our job to look for prohibited items.'

Whether small amounts of marijuana are allowed on planes flying within California remains up in the air. Melendez said he would not recommend that passengers carrying the drug notify a screener; his agents are supposed to alert local authorities in such cases.

Ron Brownlow of Roseville wanted to be on the level. On his way out of San Diego on Jan. 21, he told screeners he was carrying a quarter-ounce of marijuana he smokes to relieve chronic back pain.

The federal workers notified local authorities, and Harbor Police issued Brownlow a ticket. They also took his pot. Harbor Police officials declined to discuss the case.

Brownlow, 48, said he did the same thing in Sacramento on his way south, but officials there let him go after a few minutes of discussion.

In San Diego, patients are allowed to possess up to one pound of marijuana and grow up to 24 plants under city guidelines. Brownlow said he would contest the ticket when he appears in court here next month .

'I have a degenerating disk disease and three bleeding ulcers,' said Brownlow, a former welder who showed Harbor Police a note from his physician recommending marijuana. 'It's hard for me to take pills. Once I start taking pills, after two or three days I start throwing up blood.'

Slow start

Scattershot enforcement of the state's Compassionate Use Act was supposed to be rectified by a new law that went into effect Jan. 1.

But the California Department of Health Services has yet to issue I.D. cards to medical marijuana patients or set up a toll-free phone number police could call to verify a patient's legitimacy.

A department spokesman said the office is 'reviewing options' for applying the statute. County health officials who are required to implement much of the law also have made limited progress.

Medical marijuana activists doubt many government officials' commitment toward enforcing the new standards. They worry that some politicians and police are deliberately dragging their feet because they oppose marijuana.

Even though the 9th U.S. Circuit Court of Appeals ruled in December that the government cannot prosecute qualified patients in states where marijuana use is permitted, criminal cases continue to be filed.

'A lot of judges are still skeptical of it,' said Dale Gieringer of the National Organization for the Reform of Marijuana Laws in San Francisco. 'It's considered radical, and they think it'll be appealed.'

Police in Clovis, just down state Route 99 from Chowchilla, arrested a couple for possession after they complained that neighborhood youth were stealing their plants. Gary and Paula Ainsworth were growing seven plants.

The criminal case is still pending, but what struck their attorney as remarkable was a Clovis Police Department news release that listed the Ainsworths' home address.

More alarming, defense attorney William McPike said, was the last sentence. 'While medicinal marijuana may be legal in California, Fresno County has a no tolerance policy toward cultivation of marijuana,' it reads.

Fears and accusations

McPike said too many police agencies are afraid of crossing federal officials or jeopardizing their budgets.

'If they enforce the California law, they risk the federal funding,' he said.

Victor Love of Kern County was arrested for growing 15 plants, even though he is disabled and uses marijuana on the advice of a physician. 'The deputies up here didn't seem to follow the law,' he said. 'I showed them my paperwork, and they laughed.'

The prosecutor in that case offered Love a plea bargain of 16 months in prison, but he took his chances with a jury. He was acquitted in less than an hour earlier this month.

'We're not out on the warpath to get everyone; there were indications of sales here,' said Jessica Hartnett, who prosecuted the case. 'I think there was some jury nullification going on.

Michael Barbee, who runs the San Diego chapter of the Americans for Safe Access advocacy group, said patients need a balanced approach to medical marijuana so they can grow or obtain their medicine without fear.

'The way it is now allows police to discriminate against people who are too vocal or people they don't like,' he said.

Steven McWilliams was handed six months in federal prison after being convicted of growing marijuana in his Normal Heights back yard. His sentence was stayed while the case is on appeal.

McWilliams has said all along that federal agents singled him out because of his high-profile activism. He said the whole concept of medical marijuana turns the entire war on drugs upside down.

'San Diego police have a huge narcotics and vice squad,' said McWilliams, who is to plead his case over the Sept. 24 raid before a federal appeals court next month. 'They don't want to give up an easy way to make arrests and keep budgets high. That's true around the state.'

McWilliams sued the city of San Diego for aiding federal agents in the investigation that lead to his arrest. It was in the wake of this litigation that Chief Lansdowne announced his officers would no longer join in raids on medical marijuana patients.

'Our current procedure protects the rights of qualified patients and primary caregivers to have access to legal amounts of marijuana,' the chief wrote to council members last month.



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