Confusion abounds in Arizona's tricky medical marijuana
July 18, 2011
Dan Zeiger, West Valley Tribune
The waiting area looks like that of any doctor’s office, with magazines, television and water cooler, but those who come through the doors of Arizona Compassionate Alternatives seek treatment that is unorthodox.
It has become less so since Arizona voters in November made medical marijuana state law. However, amid police raids, lawsuits and federal memos, many of the clinic’s 85 visitors this month have had questions concerning the legality of the treatment they seek.
“There’s been a lot of misinformation,” said Judy Spillman, manager of Arizona Compassionate Alternatives, whose two doctors determine whether patients qualify for use under guidelines in the Arizona Medical Marijuana Act.
Under the law, those with a patient registration card issued by the state Department of Health Services can legally possess up to 2.5 ounces of marijuana.
However, Gov. Jan Brewer and Arizona Attorney General Tom Horne filed suit in U.S. District Court in May, citing concerns about exposing state employees who oversee the medical marijuana program to potential federal prosecution. Marijuana possession remains illegal under federal law.
As a result, the state is not processing applications for dispensaries, where patients could acquire marijuana.
Last week, Maricopa County became a co-plaintiff in the suit.
“We are in an odd period now,” said Jerry Cobb, spokesman for Maricopa County Attorney Bill Montgomery. “The law has been approved, the policy argument is over because the voters have spoken. Our office respects that. We’re not trying to change what voters have approved, but we have a responsibility to make sure that the county is not exposed to additional liability.”
Seventeen states and the District of Columbia have legalized medical marijuana. In 1996, California became the first state to enact such a law, and medical marijuana has evolved into a billion-dollar industry in that state.
Kris Hermes, spokesman for Americans For Safe Access, said that a “culture of resistance” to medical marijuana exists among law enforcement, even in states where it has been legalized.
In June, Gilbert police conducted raids on the home of a registered medical marijuana patient and the Tempe office of an advocacy group.
Medical marijuana supporters were jolted by a June memo by U.S. Deputy Attorney General James Cole stating that state laws “are not a defense” from federal action. Congress has labeled marijuana a “dangerous drug” whose distribution is a “serious crime,” the memo reads.
“Local law enforcement seems to be stuck in a decades-old drug war whose casualties really are people who are using for medical reasons,” Hermes said.
“It doesn’t help when the federal government positions itself in this arena by saying it doesn’t respect even laws that are passed by the people or state legislatures. That sort of emboldens local law enforcement all over again to resist upholding them.”
Under Article VI of the Constitution, federal law supersedes state law. But Tucson-based attorney Jenne Sandy Forbes said she does not think medical marijuana patients in Arizona will be prosecution targets.
“In its suit, states seems to be asking for an advisory opinion — if we do this, will our people be violating federal law? Frankly, they probably would be,” Forbes said.
“My sense with the feds and the (Cole memo) that have been sent out is that they aren’t interested in going after individual marijuana users for medical purposes. I think they’re more interested in large growers. I don’t know if that includes dispensaries licensed under the new statute, but it certainly could. The dispensaries in California have been up and running, and the feds don’t seem terribly interested in shutting them down.”
In a May letter to Arizona Department of Health Services Director Will Humble, Dennis Burke, the U.S. attorney for Arizona, reiterated that marijuana is illegal under U.S. law but echoed recent stated policy of not focusing limited resources on those using the drug for medically recommended treatment.
“What his letter said is that while people complying with the state law are not a priority for this office, we can’t provide haven from prosecution because marijuana is still illegal under federal law,” U.S. Attorney’s Office spokesman Robbie Sherwood wrote in an email to the Tribune. “Mr. Burke has since reiterated that he has no intention of going after state employees; in fact, his letter doesn’t indicate an effort to go after anybody.”
So where does that leave the thousands of Arizonans who have been issued patient registration cards since April?
With dispensaries not an option, advocates have seized on a part of the law stating that “qualified patients” can provide marijuana to one another if “nothing of value is transferred in return.”
The Arizona Compassion Club — a self-described “network of patients assisting patients” — has three locations in the Valley, including one in the same Tempe complex as Arizona Compassionate Alternatives.
Spillman said that, if a patient qualifies under the law, her clinic will help with the filing of state paperwork and provide referrals of providers, including the Arizona Compassion Club.
“The dispensary portion of the law is on hold, for better or worse, but I don’t think it’s limiting patient access,” Spillman said.
Cobb said that the county attorney has not received cases involving registered patients possessing a legal amount of medical marijuana. He added that some cardholders have been charged with related crimes.
But federal law could continue to make the medical marijuana issue hazy.
“That’s why you’re seeing states sue to get clarification from federal court,” Cobb said. “The confusion stems from policy as opposed to law. The federal administration has said that its policy is not to go after medical marijuana patients, but that can change with a new administration, or it could change if the current administration chooses.”