I woke up this morning feeling nervous and unsettled. My friend and colleague Michael Martin was to be sentenced this afternoon, and I prepared myself for the worst. But after an emotional rally and lengthy sentencing hearing, I felt at ease because Mickey is not going to prison.

After pleading guilty in federal court to manufacturing marijuana edibles, with the government finding more than 400 plants, Mickey faced a guidelines range of 30 to 37 months imprisonment.  However, due to the tension between state and federal law and the lack of any evidence that any edible produced by Mickey was diverted to recreational use, United States District Court Judge Claudia Wilkin exercised her discretion to sentence Mickey to 5 years probation, with one year to be served in a halfway house and one year to be served in home confinement.

The hearing was intense. Judge Wilkin asked several astute questions about state law and the interplay between state law and federal law. Clearly, she saw that the conflicting laws made medical marijuana cases unique. After Mickey’s attorneys spoke about state law and the need for a change in federal law, Mickey spoke for himself. He talked about the cancer patients that had been able to eat after using his edibles. He spoke about his loving family and his service to the community. He explained that he had only done what he did to help people, and never to profit. Half way into his speech, most of the dozens of supporters packing the court room were in tears.

His speech and the stack of support letter the judge had received made a difference. And after the judge announced his sentence, the entire court room of supporters stood up and clapped.

Of course, Mickey never should have been prosecuted in the first place and deserves no punishment for providing medical cannabis edibles to ailing California patients. But this punishment was the best he could have hoped for. It means that he will not miss any years of his children’s lives and that he can continue to work and provide for his family.

This sends another message by a federal judge that the federal government should not waste its time bring these cases.

1. Attorney General Issues Comprehensive Medical Cannabis Guidelines

On Monday, California Attorney General Jerry Brown issued long-awaited guidelines which direct law enforcement on dealing with medical cannabis. The guidelines were developed in close coordination with Americans for Safe Access (ASA), and are an incredible step forward for California’s medical cannabis law.  Though they explicitly instruct police to abide by state and not federal law when it comes to medical cannabis, perhaps the most significant aspect is its recommendations for operating medical cannabis dispensaries in accordance with state law. Specifically, the Attorney General states that, “a properly organized and operated collective or cooperative that dispenses medical marijuana through a storefront may be lawful under California law.”

The guidelines are the culmination of years of work by ASA and other advocates to educate and urge action from the Attorney General and other state officials. The move by the Attorney General signifies strong leadership from California’s top law enforcement official in backing our medical cannabis law, and will ultimately lead to fewer unnecessary arrests, citations and seizures of medicine from qualified patients. They provide direction for patients, police, lawyers, judges and public officials to better understand their rights, responsibilities, and obligations under state law.

This strong statement of support for CA’s medical cannabis law comes at a time of escalating aggression by the federal government. The federal Drug Enforcement Administration (DEA) and Department of Justice continue to undermine California law through raids, seizures, prosecutions, and imprisonment of state-sanctioned patients and providers. In response, a number of California mayors and other elected officials have voiced their frustration with DEA to House Judiciary Chair John Conyers (D-MI), calling for oversight hearings.  In adding to the plea to federal agents to let California implement its own laws, Attorney General Brown told the LA Times, “Hopefully the feds will back off in instances where people are really following these guidelines.”

2. Santa Barbara Protesters Call for End to DEA Aggression

Santa Barbara organizer Mark Russell led a crowd of about 100 demonstrators in a march on Wednesday to show solidarity in the face of the federal government’s threats to shut down the numerous medical cannabis dispensaries in town. Protesters marched from the waterfront to the heart of downtown, proudly sporting T-shirts reading “I Am Not a Criminal,” and “No Access Is Not a Solution,” and chanting “Protect our rights! All of our rights!”. The protest was a phenomenal display of strength and community in opposition to the actions of the DEA.

The group was peaceably assembled on both sides of the street, and there were no police officers present or necessary.  However, the message was one of anger and frustration with a federal agency (DEA) that takes it upon itself to undermine the laws of any state it wishes. Innocent people are being systematically locked up by our government just to prove a political point, and it cannot continue.  “It’s not right that the federal government is trying to control peoples’ lives,” said one protester.

Present at the march was national medical cannabis activist Elvy Musikka — one of the few people in the country provided cannabis by the federal government for medical reasons.  Elvy’s presence was symbolic of the hypocrisy of the federal position on medical cannabis, which still makes the claim that there are “no medical benefits” to the plant whose therapeutic properties are widely recognized by researchers all over the world and by many of the most respected health care groups in the US.

The City of Santa Barbara recently approved an ordinance to regulate cannabis dispensaries, a proactive step being taken by a large number of cities and counties to embrace California’s medical cannabis law, and one that’s expected to increase with the release of dispensary guidelines from Attorney General Jerry Brown. Mark Russell’s protest is a model of action for other California communities who want to stand up against DEA’s threats on our communities.

When news came out about the medical marijuana guidelines issued yesterday by California Attorney General Jerry Brown, the headlines largely read, “AG: Some medi-pot dispensers may be illegal.” Specifically, the Associated Press painted a bleak picture pointing to a misperceived likelihood of local law enforcement joining the feds in raiding for-profit dispensaries.

However, it would not be an understatement to claim the guidelines as a huge victory. It is not only a victory for dispensaries, a medical marijuana distribution system that has flourished and benefited hundreds of thousands of patients over the last 10 years. But it is also a victory for patients who are still in danger of defiant and recalcitrant police.

The truth of the matter is that never before has the California Attorney General (AG) directed law enforcement in a clearer way to avoid unnecessary harassment of patients and providers. Even though Americans for Safe Access (ASA) has been working with the AG for several years and urging both Bill Lockyer and Jerry Brown to issue an official position, it was a case being litigated by ASA that finally compelled that office to act. The appellate court decision in Garden Grove v. Superior Court (Kha), a case that is now binding law for the entire state, made clear that state law was not preempted by federal law and that local police have an obligation to abide by the state’s medical marijuana law.

In the Kha case, the court ruled that if medical marijuana is wrongfully confiscated, police are required to return it to the patient or caregiver from whom it was seized. The AG took this decision and crafted a “road map” for police to establish sensible policies that take into account this new legal terrain. Although certain localities have followed in the footsteps of the California Highway Patrol policy, established as a result of ASA’s litigation, many jurisdictions continue to ignore state law. In addition to reviewing the guileines, cities and counties across the state would do well to review the CHP policy as well as more recent policies such as those established by the County of Merced.

When the AG was finally quoted by the Los Angeles Times, it was to say he hopes “the feds will back off.” Ever since the 2005 U.S. Supreme Court decision in Gonzales v. Raich, the federal DEA has been determined to undermine California’s medical marijuana laws by raiding dispensaries and threatening dispensary landlords with asset forfeiture and criminal prosecution. The AG guidelines send a clear message to the federal government that we are staying our course in California and that dispensaries, at least most of them, are law-abiding entities and should be protected by state law. Whether or not that results in less enforcement against these facilities remains to be seen. ASA flatly opposes raids on dispensaries whether by federal agents or local police, but if raids are going to occur, prosecuting cases in state court is infinitely better than prosecuting them in federal court where medical evidence is prohibited.

We at ASA believe that, after the dust settles, these guidelines will represent the final chapter in the implementation of California’s medical marijuana laws. Sure, there will be further court battles and renegade cops running afoul of the law, but finally we have official word from the top law enforcement officer in California directing local police on how to better enforce the law. That should be something to celebrate!

For anyone that missed it, the Colbert Report recently featured medical marijuana patient Gary Ross.

Gary was the plaintiff in the employment rights case Ross v. RagingWire that ASA took to the California Supreme Court. Unfortunately, we lost and the Court ruled that employers have the right to fire and refuse to hire medical marijuana patients. Not satisfied with the ruling, ASA went to the state legislature and worked with Assembly member Mark Leno (D-SF) and others to introduce a bill that would reverse the Court’s ruling. That bill just passed both houses of the state legislature and is on its way to the Governor’s desk.

1. ASA’s Victory in Medical Cannabis Employment Rights! After passing the CA Senate, AB2279 now heads to the Governor’s desk!

ASA’s medical cannabis employment rights bill, which would protect hundreds of thousands of patients in California from employment discrimination, passed the State Senate on Tuesday! Since the bill passed the California Assembly in May, this victory means the bill now heads to straight the Governor’s desk in the next few weeks!  Congratulations to all ASA our supporters who worked hard to ensure this bill passed.  Special credit goes to ASA California Director Don Duncan, who led the legislative work and carried this bill through both Houses.

AB2279, introduced by Assemblymember Mark Leno (D-San Francisco), reverses a January California Supreme Court ruling (Ross v. RagingWire), which ruled that individuals could be fired by their employers simply due to their status as medical cannabis patients!  Support for the bill has been widespread, coming from labor, business, and health groups at the local and national level.

Now that both houses of the California legislature have voted in favor of employment rights for patients, the onus is on Governor Schwarzenegger to sign the bill into law.  The Governor has a chance to include medical cannabis patients as productive members of society, protecting the jobs of hundreds of thousands of Californians with serious illnesses.  Citizens across the state were instrumental in the passage of this bill.  You called and emailed your state legislators in large numbers to ensure they voted for this bill. While this victory is significant, it won’t become law unless the Governor allows it.  Your help will be absolutely critical in putting pressure on Gov. Schwarzeneggar to sign this bill into law - so keep watch for an upcoming ASA Action Alert  to flood the Governor’s office with calls!

The bill leaves intact existing state law prohibiting medical cannabis consumption at the workplace or during working hours and protects employers from liability by carving out an exception for safety-sensitive positions. It’s about allowing patients who are able to work safely and who use their doctor-recommended medication in the privacy of their own home, to not be arbitrarily fired from their jobs.  In the words of Assemblymember, Leno. “The voters who supported Proposition 215 did not intend for medical marijuana patients to be forced into unemployment in order to benefit from their medicine.”

Thanks to all of you for your support!

2. Federal Court Rules that DEA’s Actions in California May be Unconstitutional

On Wednesday, a federal judge ruled that the DEA crackdown on medical cannabis in California may not be allowed under the 10th Amendment, saying that enforcement of U.S. drug laws can go too far if it seeks to interfere with state authority.

U.S. District Judge Jeremy Fogel of San Jose denied a Bush administration request to dismiss the lawsuit by the ACLU, Santa Cruz city and county officials, and members of the Wo/Men’s Alliance for Medical Marijuana (WAMM), a patient collective whose medical cannabis was seized by federal agents in a 2002 raid.

Since 1996, the DEA’s aggression in California has included raids of locally regulated dispensaries and collectives, property seizure threats to landlords, attempts to intimidate and punish doctors, and prosecutions of patient caregivers.  These tactics have come under fire for years by ASA and others as an attempt to undermine California’s constitutional right to enact health care policies that protect patients within our state.  This ruling in the United States District Court says that we may have been right all along.

The suit claims federal prosecutors have tried to disrupt the California law by targeting critical participants in the state system - doctors who approved their patients’ cannabis use, local officials who issued state-approved identification cards to patients, local governments whose zoning allowed dispensaries, and medical cannabis dispensing collectives who cooperated with local governments.  Federal authorities’ goal, the plaintiffs alleged, is to make it impossible for the state to distinguish between medical and recreational use of cannabis and render the state law unenforceable, interfering with California’s constitutional power to enact its own laws.

Although the U.S. Supreme Court has upheld the federal actions in the past (except for the government’s attempt to strip licenses from doctors simply for talking about medical cannabis), Fogel said the plaintiffs in this case may be able to show that the federal government exceeded its constitutional authority by trying to force California to repeal its medical cannabis law.   This case addresses the fundamental underlying problem with California’s ability to perfect its law:  federal interference and undermining of that law.  It could be an exciting end to the DEA’s attacks on medical cannabis patients in California and across the country!

Unfortunately, often when I post, I have shared feelings of sadness, anger, and frustration, as i have watched good people get wrongly punished.  So, it’s especially sweet that I can post today to share my pride and joy (or nachas, as we Jews say) that A.B. 2279 taken the next step, and passed the California Senate today, after its previous success in the Assembly.

The story of this bill starts at the desk of the Legal Services Coordinator.  I, and those who have done this job before me, had received countless legal calls from patients relaying heartwrenching stories in which they had been fired or denied employment, simply because of the biases of an employer against medical marijuana.  Californians were being told that they faced a no-win choice:  (1) use a medicine that works for you and that eases your symptoms and go without employment, or (2) either suffer through your symptoms without any medicine or be forced to use opiates (which cause negative reactions for many people) in order to be able to earn a living and provide for your family.   After the January Ross v. Raging Wire decision, I was reduced to telling people that the California Supreme Court had basically decided that they didn’t have any rights in the employment context, a sad mantra to have to repeat over and over.  I yearned to be able to do something to fix this, to change the shock and resignation I would hear on the phone into something more hopeful.

In a perfect storm of activity, I was given the power to help.  ASA evaluated the political climate and began to think the legislature was ready to pass good legislation on this topic, Assemblyman Leno’s office (who was equally incensed about the Ross decision) requested a first draft of legislation from ASA, and the assignment was given to me.

I consulted with Chief Counsel, researched previous medical marijuana and employment legislation, and tried to carefully craft each provision in my memorandum to Assemblyman Leno.  I attempted to make the language clear and concise, and evaluate my word choices for current political palatability and with an eye down the road for the larger policy implications and possible litigatable issues raised by the language.  Most importantly, I assumed that anything I drafted at this early stage would inevitably be amended by legislators, and some of the protections removed, and thus I tried to craft base legislation that protected as many patients as was possible.

Since I sent that memo to Assemblyman Leno, he and his staff, and the rest of ASA staff, especially California Director Don Duncan, have tirelessly collected support and successfully lobbied on-the-fence legislators, while negotiating to ensure passage of the bill in the Assembly, and now in the Senate today.  It has been a pleasure to watch their great work, and I am so happy that we were able to retain many of the protections present in my original draft.  So, though I still miss the provision that protected caregivers, I am overjoyed that patients who are fired based on simple employer knowledge, and no actual failed drug test, will remain protected in the final legislation, something that I inserted specifically in response to calls of that type.  It also comforts me to know that it will be up to a judge (and not a simple bright-line rule) to decide whether or not an employer can actually claim the safety-sensitive exception of the statute regarding a specific position, and that the judge will rely on the presence of 3 characteristics in making that decision.

Finally, it is incredibly exciting that patients in the future (in non-safety-sensitive positions) who face this type of hurtful employment discrimination will be able to sue for damages, reasonable attorneys fees and costs, injunctive relief, and any other equitable relief that the court deems proper.  It feels great to know that I really got to help make a difference, and that the language that I helped to create is so close to becoming the law of the land, language that will protect patients from losing their jobs all across California, and allow them to seek just recourse if it happens nonetheless.

Soon, our bill (after the minor differences between the Assembly and Senate versions have been ironed out) will be sent to Governor Schwarzenegger for signature, and we must ensure that this legislation clears its last hurdle, and that he signs it.  We hope and pray that the Governor will do the right thing, but it is always helpful to let him know that the citizens of his state support that decision, vociferously.  Be on the lookout on our website and listserves for upcoming actions that you can personally take to inform the Governor of what he MUST do to protect the rights of Californians and to free them from this terrible choice.

California Supreme Court Considers Medical Cannabis Again
by Joseph Elford, ASA Chief Legal Counsel

Just as many would have thought that the SB 420 guidelines of 8 ounces and 12 immature or six mature plants were a dead letter — a blessing for some a nightmare for others — the California Supreme Court granted review of People v. Kelly, which held that the SB 420 quantities are “limits” on the amount of marijuana a qualified patient may possess and, as such, constitute an unconstitutional amendment of a voter-approved initiative. Another Court of Appeal agreed in People v. Phomphakdy, so it appeared that the SB 420 guidelines were done.

For some, this was a good thing, as many law enforcement officers applied the SB 420 quantities as limits on the amount of marijuana patients may possess and busted patients who had anymore than 8 ounces or six mature plants. For others, this was a potential nightmare, since police in some communities may well go back to busting patients who have as little as an ounce or one or two plants.

So, without taking any pleasure from the process, we filed a letter with the California Supreme Court requesting depublication of the Kelly decision. Although we agreed the result of the Kelly decision and love the fact that yet another court has sided with patients, we felt it was important for the California Supreme Court to hear our view — that the SB 420 guidelines are thresholds, not ceilings. Patients should have a safe harbor and the Kelly decision, though well-intentioned, took that safe harbor away.

Yesterday, the California Supreme Court granted review of the Kelly decision, framing the issues as follows:

(1) does Health & Safety Code section 11362.77 violate the California Constitution by amending the Compassionate Use Act without voter approval?; and (2) were there alternative remedies to invalidating section 11362.77 in its entirety?

This bodes well for Mr. Kelly and the rest of us, as it appears that the Court will likely affirm the reversal of Mr. Kelly’s convictions, while maintaining that the SB 420 guidelines are constitutional, at least as they apply only to patients with identification cards or if they are interpreted as thresholds. Meanwhile, the Kelly case is depublished and the SB 420 guidelines will remain in effect.

Mendocino “Yes on B” Group Pressures Council to Stiffen Penalties for Medical Cannabis Patients

Earlier this year, a group of Mendocino County citizens pushed a ballot initiative that reduced the number of medical cannabis plants allowed by qualified patients under local guidelines.  Now, the “Yes on B Coalition” has petitioned the Mendocino County Supervisors to alter the County Code, turning what are currently minor infractions against patients into criminal matters.

Ukiah resident Larry Puterbaugh asked the supervisors to make cannabis that can be seen or smelled from adjoining properties punishable as criminal offenses. As it stands, this is considered a “public nuisance”, handled either by neighbors or a code enforcement officer.  In addition, they proposed levying a “Medical Marijuana Impact Fee” against patients or caregivers, who would be charged on a per-plant basis, and required that all plants be tagged with a numbered zip-tie. Failure to purchase zip-ties would be treated as a criminal violation, as well.

Community members spoke out against the group’s proposals, finding them ill-conceived and impractical. Jeanette Bouge said making the visibility of medical cannabis a crime is absurd. She said she grows medical cannabis behind her home in a greenhouse behind a fence, but that her neighbors would be able to see over her fence from the second floor of their homes regardless of where the garden is planted. Under the ordinance, she may be brought up on criminal charges.

Supervisors questioned the intent, priority, and practicality of the issues brought forth by the Yes on B Coalition. Third District Supervisor John Pinches said he was discouraged to see the county focusing on gardens between six and 25 plants when there are 10,000 plant gardens in the county. Fifth District Supervisor David Colfax agreed, saying the measure was representative of a “proto-vigilante attitude.”

The issue was tabled for further discussion and, along with the possible creation of a citizens advisory board, will likely be brought forth at future council meetings.

Protesters Demand I.D. Cards from San Bernardino County

More than 25 protesters gathered Tuesday at the San Bernardino County Government Center and demanded that the county start issuing medical cannabis identification cards.  Lanny Swerdlow, head of ASA Affiliate Marijuana Anti-Prohibition Project (MAPP), organized the protest to call attention to the need for the ID cards in the community, as well as the absurdity of the County to continue to challenge the program after two losses in state court.   ASA’s California Director Don Duncan was also on site offering support and letting the County know that ASA is following their actions closely.

In 2003, the state Legislature required county health departments to issue ID cards to medical cannabis patients to assist law enforcement in following state law, and to protect patients from unnecessary arrest. But San Bernardino and San Diego Counties have refused to issue the cards, taking their case to both Superior and California Appeals courts, losing both times. In light of the July 31^st Appeals Court ruling that San Bernardino must start following state law, MAPP saw the opportunity to exert heated pressure on local county officials who don’t want to follow the will of the voters, the state legislature, or the courts.

In addition, the protesters accused the county was wasting valuable taxpayer money on a hopeless lawsuit  at a time when healthcare, education, and public service budgets are being slashed. “They have basically put themselves at opposition with the people of California,” said Fontana resident Craig Johnson, a medical cannabis advocate who is on disability from his job.

The board of supervisors will decide whether the county will appeal the case to the state Supreme Court later this month.  Lanny Swerdlow and MAPP are not going to go away, and they plan to continue to aggressively hold the board accountable for mishandling county funds and subverting the will of their constituents.

Just as many would have thought that the SB 420 guidelines of 8 ounces and 12 immature or six mature plants were a dead letter — a blessing for some a nightmare for others — the California Supreme Court granted review of People v. Kelly, which held that the SB 420 quantities are “limits” on the amount of marijuana a qualified patient may possess and, as such, constitute an unconstitutional amendment of a voter-approved initiative. Another Court of Appeal agreed in People v. Phomphakdy, so it appeared that the SB 420 guidelines were done.

For some, this was a good thing, as many law enforcement officers applied the SB 420 quantities as limits on the amount of marijuana patients may possess and busted patients who had anymore than 8 ounces or six mature plants. For others, this was a potential nightmare, since police in some communities may well go back to busting patients who have as little as an ounce or one or two plants.

So, without taking any pleasure from the process, we filed a letter with the California Supreme Court requesting depublication of the Kelly decision. Although we agreed the result of the Kelly decision and love the fact that yet another court has sided with patients, we felt it was important for the California Supreme Court to hear our view — that the SB 420 guidelines are thresholds, not ceilings. Patients should have a safe harbor and the Kelly decision, though well-intentioned, took that safe harbor away.

Yesterday, the California Supreme Court granted review of the Kelly decision, framing the issues as follows:

(1) does Health & Safety Code section 11362.77 violate the California Constitution by amending the Compassionate Use Act without voter approval?; and (2) were there alternative remedies to invalidating section 11362.77 in its entirety?

This bodes well for Mr. Kelly and the rest of us, as it appears that the Court will likely affirm the reversal of Mr. Kelly’s convictions, while maintaining that the SB 420 guidelines are constitutional, at least as they apply only to patients with identification cards or if they are interpreted as thresholds. Meanwhile, the Kelly case is depublished and the SB 420 guidelines will remain in effect.

I’m a bit behind on reading other blogs (it’s been a busy couple of weeks!) so I just got a chance to read a great post by Alex at Drug Law Blog about a pair of pie charts that was featured in the ONDCP’s 2008 Marijuana Sourcebook (PDF).

Though they don’t say so explicitly, Alex argues (and I agree) that the ONDCP is implicitly making the case that medical marijuana patients in California aren’t really sick. Unless you have cancer, glaucoma, or AIDS, the ONCDP is suggesting that you are abusing the system. What this display of data ignores though is the fact that far fewer people in this country suffer from AIDS, for example, than from chronic pain. Pain issues are serious, and unfortunately often misunderstood. Just because someone isn’t terminally ill, that doesn’t mean s/he should not be able to benefit from the pain relief and muscle relaxation gained from using cannabis.

The second pie chart is just as unfair in its implications. Just because someone is “young” does not mean that s/he does not have a serious illness. In my years of working at ASA, I’ve been amazed at how often people who use medical marijuana appear to be healthy. Some are young, in good physical shape, and have successful careers. But I’ve gotten the opportunity to get to know these patients and found that they suffer terrible pain from arthritis, multiple sclerosis, various forms of cancer, debilitating back pain, or HIV.

The reason many of these people are able to pass as healthy is because marijuana is working. This is something the ONDCP’s pie charts could never show.

As Alex concludes, “It is, to say the least, a frightening thought to suppose that some bureaucrat in Washington D.C. is sitting at a computer making pie graphs that purport to tell the entire country what medical conditions are and are not serious enough to warrant relief from suffering.” Go read the rest of his post for more analysis.

Check out the latest video from Reason TV on the trial of medical marijuana provider Charles Lynch. Reason was present with Americans for Safe Access and others when the jury returned their guilty verdict. The video includes interviews with Lynch’s attorneys and the jury foreperson, all speaking candidly about the trial and verdict.

Sadly, Lynch faces decades in federal prison. But, before his sentencing occurs, Lynch’s attorneys intend to file a motion for a new trial. Stay tuned here or at reason.tv for updates.