Pages tagged "legal"
ASA Chief Counsel, Joe Elford, Argues in Federal Court on the Data Quality Act Case This week, ASA's Chief Counsel, Joe Elford, gave oral arguments in front of Federal Court Judge William Alsup in San Francisco. Mr. Elford gave arguments seeking an answer from the HHS regarding the Data Quality Act petition. ASA filed a Data Quality Act (DQA) petition on October 4, 2004, requesting that HHS correct its information being disseminated regarding the medical use of marijuana. The DQA requires federal agencies, like HHS, to ensure that the information it distributes is fair, objective and meets certain quality guidelines. After numerous delays, HHS denied ASA’s petition on April 20, 2005. ASA quickly filed an appeal, and after even more delays, on July 12, 2006, HHS denied the appeal. Having exhausted its administrative remedies, ASA filed a lawsuit on February 21, 2007, in U.S. District Court for the Northern District of California, naming HHS and FDA, and challenging the government’s violation of the Data Quality Act. An amended complaint was subsequently filed on August 17, 2007. Mr. Elford's arguments called for an answer from HHS in a timely manor. We expect a ruling from Judge Alsup within a few weeks. Mendocino County Supervisors Send Medical Marijuana Regulations Back to Committee This week, Mendocino County Supervisors voted to send the proposed medical marijuana regulations back to committee. The proposed dispensary regulations which were sent back to committee put a cap on only 2 dispensaries in the large county. It has also been criticized as having unattainable regulations which will put up roadblocks for providers and patients. The current draft of the regulations will be amended in the Criminal Justice Committee. Just two months ago, the CJ committee made recommendations to limit the number of plants a patient is allowed to have. In response, the same Board of Supervisors passed an ordinance calling for the county to honor the voters' wishes as specified in measure G and to keep the guidelines at 25 plants per patient. The Board of Supervisors rejected the Criminal Justice committee's recommendation to lower the County's limits to 6 mature and 12 immature plants. Activists in Mendocino County are hoping the Criminal Justice committee scraps the regulations all together. To find out how you can help in Mendocino County and ensure safe access, please contact Bruce at: MendoBruce@yahoo.com.
Analysis of oral arguments before the California Supreme Court in Ross v. RagingWire on 6 November 2007 Unfortunately, I was not able to attend Tuesday's oral arguments before the California Supreme Court (CSC) on whether employers like RagingWire Telecommunications, Inc. have the right to discriminate against medical marijuana patients like Gary Ross. At the time the CSC granted review in November 2006, I was the Legal Campaign Director at Americans for Safe Access (ASA). Without a doubt, it was a proud day for me and everyone else at ASA to have this case finally get heard. I was equally excited, in my new role as Media Liaison at ASA, to see the extent of news coverage on this important issue, with articles in AP, SF Chronicle, Sacramento Bee, The Recorder, and FindLaw. When I viewed the oral arguments after the fact, on the California Channel, which ran a live feed from the courtroom, I was left with much optimism for a ruling that favors Ross's struggle to be free from discrimination. The three areas I felt the court focused on most were: whether RagingWire, the employer, would be unreasonably inconvenienced to be required to hire or continue to employ medical marijuana patients; whether federal law somehow prevented RagingWire from hiring or continuing to employ medical marijuana patients; and whether the People of California or the State Legislature intended to exclude medical marijuana patients from the workforce. It was my impression that ASA Chief Counsel Joe Elford and attorney Stewart Katz, each acting as co-counsel arguing before the court, nailed each of those issues extremely well, while opposing counsel for RagingWire foundered and failed to provide solid responses to the court. I will attempt to detail each of the three issues below. Regarding unreasonable inconvenience, Elford rightly claimed that concerns over unlikely interference by federal law enforcement at the workplace, or elsewhere, did not rise to the level of needing to carve out a large exception to the Fair Employment and Housing Act (FEHA) simply to allow employers to discriminate in this way. Nor did it rise to the level of forcing more than 200,000 medical marijuana patients in California from the workplace and denying them a right to thrive. Elford also points out that some of the existing accommodations required of employers by FEHA (he used the example of ramps for wheelchair-bound workers) far surpass any inconvenience that might be posed by accommodating the productive employment of medical marijuana patients. The Compassionate Use Act (or Proposition 215) is pretty clear in conferring "the right" to "seriously ill Californians" to "obtain and use marijuana for medical purposes." To have any meaning, this "right" must not prevent patients from earning a living. Regarding the issue of supposed state-federal conflict, it was amply answered that there is none. By granting Ross, who is a productive, disabled veteran, the same right to work as others in his field, the employer is in no way violating federal law. The Drug-Free Workplace laws pertain only to on-the-job intoxication, possession, or distribution of illegal substances. As offensive as many drug-testing requirements are, the federal government never meant Drug-Free Workplace laws to reach into the homes of productive workers. The specter of losing federal contracts is also a red herring, since such forms of punishment absent of wrongdoing (under state or federal law) by the worker(s) and employer would be unjustified and arguably illegal. Regarding the intent of the legislature, Ross wins hands down. The fact that the California Legislature only implied the right to work by indicating that employers need not accommodate on-the-job medical marijuana use compelled the court to ask multiple questions on the matter. That the legislature made note of employment in the Medical Marijuana Program Act but failed to provide employers with a blanket right to discriminate against patients speaks volumes to their right to work. However, we don't even need to go there. There should be no question as to the intent of the legislature, since an amicus 'friend of the court' brief was filed by all five of the original co-authors detailing their intent to provide medical marijuana patients the same discrimination-free opportunities as other productive workers in California. The CSC will decide this case on or before February 5, 2008. The livelihood of literally hundreds of thousands of patients is now in the delicate hands of the court. However, regardless of the outcome, the strong conviction of a majority of Californians voters and a legislature that endorsed the rights of medical marijuana patients will continue to compel us to strive for justice. For more information, see ASA's web page on the Ross v. RagingWire case, which is also located on ASA's Brief Bank page.
ASA Fights in the California Supreme Court to Protect Patients' Rights to Work On Tuesday, November 6, Americans for Safe Access Chief Counsel Joe Elford argued an appeal of the discriminatory decision of September 7, 2005, when the Court of Appeals for the Third Appellate District denied a qualified medical marijuana patient any remedy for being terminated from his/her employment simply for testing positive for marijuana. In Ross v. Ragingwire Telecommunications, Inc., the court relied on federal law to defeat Gary Ross' state law causes of action for wrongful termination in violation of public policy and employment discrimination in violation of California's Fair Employment and Housing Act. “Neither the People of California nor the state legislature intended to exclude medical marijuana patients from a productive workforce,” said Joe Elford. “California must continue its leadership role in protecting disabled workers,” continued Elford. “The Court must rule on the side of Ross, and on the side of thousands of California patients that risk discrimination on a daily basis.” After the lively hearing, Elford and Ross met with dozens of reporters outside of the courthouse. The Associated Press story was picked up by more than 200 papers nationwide. FindLaw and The Recorder offered legal analysis of the hearing, and Drug Law Blog posted YouTube clips of the highlights of the arguments. A ruling in the case will be issued within 90 days of the hearing. For further explanation and links to the legal briefs, go to ASA's Brief Bank page on Ross v. RagingWire. Federal Defendant Bryan Epis Remains Free Bryan Epis was the first medical marijuana patient convicted in federal court after the passage of California’s Proposition 215. Epis was arrested June 25, 1997, after Butte County sheriff's officers discovered marijuana plants growing in the basement of his home in Chico. After an incredibly lengthy federal trial process, on September 14, 2007, U.S. District Court Judge Frank C. Damrell sentenced Epis to 10 years in prison. Epis has been out on bail since August 9, 2004, pending his appeal to the Ninth Circuit Court of Appeals, and Judge Damrell denied the prosecution's request to imprison him immediately. Epis' attorney, Brenda Grantland, then filed a motion for continued bail pending his appeal, and after reading it, the U.S. Attorney conceded, and did not oppose the motion. In a piece of great news, this means that Epis will remain out of federal prison and home with his family for at least the next 18 months, which is the soonest he can expect a decision on his case from the Ninth Circuit. An in-depth report of Epis' sentencing hearing by Vanessa Nelson is available (with pictures) here. Congratulations again, Bryan, from ASA staff and membership!
Nate. R. is a medical marijuana patient living in Orange County, California who uses marijuana to treat clinical depression. I wanted to write this post to let others who are qualified patients know that the law is here to work for us. I found this out on October 29th, 2007 when I went to my preliminary hearing at the Harbor Justice Center courthouse in the City of Newport Beach to find that the District Attorney had dismissed charges of Possession of Concentrated Cannabis 11357 (A) of the Health and Safety code. Lets rewind this back to 5 months ago when the incident in question took place. I was arrested on May 5th 2007 in Newport Beach, Orange County, CA for being in possession of .2 grams of hashish. I was no stranger to medical marijuana and knew the laws that were put in place for us. I have read these numerous times and can recite them, I have also studied that Attorney General's opinion on concentrated cannabis and the conclusion that hashish as well as any other concentrated cannabis is protected under Prop 215 and SB 420. With this information in hand, I knew that this was covered and never thought twice about being in possession of hashish. As I found out the hard way, not all law enforcement agencies feel the same way. I was originally going to be cited for possession of marijuana since I also had 2.5 grams of marijuana, but once the officer noticed the hashish, he stated that it as well as marijuana is illegal under federal law. Knowing that city police officers were not under federal jurisdiction, I felt I should question the officer on this statement. I had asked the officer "Are you telling me that prop 215 and SB 420 are not valid laws?" To this the officer promptly replied "Under federal law possession is still illegal and we have been instructed to follow it as such". At this point the officer also informed me that possession of hashish is a felony and that he was placing me under arrest. I had to be bailed out of jail that night so I would be able to go to work the next day. Going to the first court date for arraignment I was not sure what was going to happen. I can honestly say I was scared. I have been a tax paying citizen of Orange County all my life and never once had I been in trouble with the law so this was all new to me. At court I was assigned a public defender to handle my case. While I was giving my interview to the public defender, he had asked for a copy of my recommendation so they could make copies. On my next court date that was my pre trial I find out that a new public defender had been assigned to my case and at that point got to meet her. As we were talking about the case she asked if I have a copy of my recommendation to which I responded that I had already given this to them. Come to find out they had lost my recommendation out of my file. Once again court dates pushed forward for another month. I show up to my next pre-trial date but this time with an attorney specializing in medical marijuana cases. Due to me getting a new attorney we once again had to push the court dates up yet another month. At this point it is starting to get ridiculous, not to mention costly. We show up for the next court date for my preliminary hearing this time to see if I am going to be bound over to the Superior Court for jury trial - keep in mind the whole time I am going through this the DA is wanting me to plead out and take a felony hit on my record all over .2 grams of hashish even though I am a qualified patient. We were in the middle of filing a motion for dismissal to the courts since the District Attorney was not willing to drop the case. Of course this prompted yet another court date which pushed it a month and a half later into October. Back to October 29th 2007, we are sitting in court waiting to be called and finally my name is called. The judge asked if we as well as the prosecutor were ready to which we both said we were. After waiting about 30 minutes the District Attorney comes into the court room and walks up to my attorney. She asks him if we have any witnesses to which he responded yes that we had two since I and another patient who was with me the night I was arrested were there to testify. The reason for the other patient to be there is due to the fact that my recommendation was taken from me that night and never returned, it was never entered into evidence nor was it placed into my property bag. This was brought up to the prosecutor and she was not sure how to handle it as she did not have any experiences with medical marijuana cases. Due to this she went downstairs to the District Attorney's office and spoke with another person that is well versed in the laws. After waiting 30 minutes the prosecutor walks upstairs to inform my attorney that they will not be proceeding with the case and were dismissing charges. This was the best news I had heard. I can for one speak on the fact that going through hearings and court is one of the most trying times that one can experience. I am thankful for the support of the medical marijuana community that has been shown to me. It is easy to lose faith and want to give up and it is so important to have a strong support group for the person going through something like this. I also would like to thank ASA as they have been there for me from the beginning to the end and assisted in every way they could.
It is a sad day for the people of Montana, medical marijuana advocates, and people anywhere who are sympathetic to the plight of the sick and dying. Robin Prosser, a Missoula, Montana medical marijuana patient, and a powerful activist fighting for the rights of patients, took her life on October 18. She will be remembered in the struggle for a compassionate and humane federal policy on medical marijuana. Robin was a fighter. She encountered many obstacles, but many victories along the way. In 2002, she sustained a 60-day hunger strike in order to bring attention to her need for medical marijuana, as well as a need for the protection of patients. In 2004, Robin was charged with possession of an illegal substance and paraphernalia, but managed to fight the charges and continue to use medical marijuana. Arguably, the attention Robin gave to the issue in the preceding years helped to pass I-148, the Montana Medical Marijuana Act (MMMA) of 2004. However, even with the passage of the much-needed MMMA, Robin's troubles were not over. In 2007, a UPS package was intercepted from her registered caregiver by the DEA. The package was her twice-monthly shipment of 20 grams of medical marijuana. Though no federal charges were ever filed against Robin, the action by DEA agents was a clear attempt to intimidate her and others. In fact, the DEA's involvement is representative of increased attacks on patients in states with medical marijuana laws. It is part of a last-ditch effort to avoid a federal policy change. I had a chance to talk with Robin shortly after the DEA seized her medical marijuana and she informed me at the time that she had no other way to obtain the medicine she relied on to treat her severe pain and nausea caused by an immunosuppressive disorder she had endured for more than 20 years. Robin was rightfully angry and despondent. It is a shame that we have lost another activist in this struggle. It is shameful that the DEA either cannot see the harm it is inflicting, or is cognizant of the consequences of its actions but refuses to change course. Regardless, it's a tragedy. Robin will be missed, but we must carry on her strong activist conviction.
ASA's trip to LA two weeks ago for the rally calling on Governor Schwarzenegger to Stand Up for Patients' Rights was apparently well documented. On Thursday, hundreds of patients and advocates rallied outside of Governor Schwarzenegger's Los Angeles office: Later that night, the DEA raided a medical marijuana dispensary in Los Angeles. ASA and LA activists jumped into motion and coordinated a protest outside of the dispensary: During the weekend, Dean Becker interviewed me for a documentary he's working on, and I discussed the increase in raids and ASA's response to DEA actions (my interview follows the one with Dr. Mitch Earlywine):
DEA raids consistently disrupt the lives of innocent patients and providers, but two recent raids have threatened to break up these two happy families: Breaking Up a Family... Ronald Naulls operated a safe, legal medical cannabis collective in Corona for over a year. On July 17, 2007, Naulls's home and the collective were invaded by the DEA. They seized everything: his property; his personal accounts; all of the collective's assets. Naulls was arrested and is now facing federal prosecution for distribution of medical cannabis. But that wasn't the worst of it. County child protective services came along and took Naulls's three little girls, ages 1, 3, and 5, and charged his wife with felony child endangerment. When they spoke to their children in their confidential foster home, the big sister said, Mommy, we're ready to come home now, we promise to be good. The family has since been reunited, but Naulls is still facing a lengthy legal battle. You can help out by donating through Green-Aid. Paramilitary-Style Raids Deny Patients Access to Edible Cannabis On September 26, 2007, the DEA raided five locations the DEA says are connected to Tainted, Inc., a well-known supplier of edible medical cannabis products available in dozens of medical marijuana dispensaries across the state. Heavily armed federal agents seized cannabis plants and medicinal edibles, arrested three people and killed an employee’s dog. On October 4th, Michael Martin turned himself in following an arrest warrant issued during the raids. He spoke in front of the Oakland Federal Building, surrounded by his wife, two children, and his mother, pleading with the federal government to spare his family more pain. Martin and three other defendants in the Tainted case are facing a lengthy and expensive legal battle, and Martin could face twenty years or more in federal prison for his role in supplying medical cannabis to qualified patients. You can help out by donating through Free Tainted.
So, think about this. Medical marijuana use and cultivation has been legal in California since 1996, but more than ten years later, there are still local law enforcement agents who refuse to follow state law. Especially since the Raich decision in 2005, many California law enforcement officials have cooperated with the federal government in investigating, raiding, and arresting medical marijuana patients and providers. In the most egregious cases, local governments have actively regulated and issued permits to these providers, only to have local law enforcement later turn them over the federal government. Here is an incomplete list of some stories of this practice, feel free to post others in comments with source links.
- On 9/13/07, DEA and Nevada County Sheriffs raided several residences near Big Oak Valley, and arrested 3 individual patient-cultivators for cultivating 190 plants. Nevada County Sheriff Keith Royal initiated the investigation, and utilized federal DEA warrants because federal charges carry more jail time upon conviction than state cases and he intends to continue to raid collective cultivation sites. "We asked for help through the U.S. Attorney, and the DEA came through with the warrants," Royal said. Source
- On 8/29/07, DEA, San Mateo County Narcotics Task Force, and San Mateo PD raided 3 dispensing collectives in San Mateo (Patients Choice Resource Cooperative, Peninsula Patients Local Option, M.H.T.), confiscating medicine and shutting them down. After considering a letter he had received from Patients Choice that explained the legality of dispensing collectives under state law, San Mateo County Deputy District Attorney Steve Wagstaffe decided to call in the DEA to raid the dispensaries. "We could have sat here and spent a great deal of taxpayer money in San Mateo County, prosecuting it and going through the appeals, or we could bring the case to the attention of the federal government," Wagstaffe said. Source
- On 7/25/07, DEA & LAPD raided 10 dispensing collectives in Los Angeles, confiscating medicine, arresting 5 and closing many of the collectives. Specifically, one LAPD Officer, Detective Dennis Packer, was caught on video wearing DEA regalia and actively participating in the raid, and was a cross-deputized agent. While the LAPD promised to investigate his role in the raid, on 8/16/07, LAPD Commander David R. Doan told the Los Angeles City Council that the LAPD will continue to participate in federal raids on local medical marijuana dispensing collectives. Doan told council members (many of who were pressuring him not to cooperate) that the LAPD had a positive relationship with the DEA and he did not want to risk damaging that relationship and that it was LAPD policy to provide assistance with lawful federal warrants. Doan stated, "If it's going to be our position to say we're not going to help the [Drug Enforcement Administration], I'm not authorized to make that statement today," Doan said. Sources here, here, here and here.
- On 5/1/07, DEA, Kern County Sheriffs & Bakersfield PD raided Nature’s Medicinal Collective in Oildale and confiscated medicine, warning the dispensing collective not to reopen. It reopened anyway, and as the culmination of an 18-month investigation, the same law enforcement agencies raided again on 7/17/07, confiscating medicine and eventually arresting 8 patients on federal charges of conspiracy to distribute marijuana. Kern County Sheriff Donny Youngblood, remarked after the first raid, “I understand why they are offended. First you regulate us and then arrest us. It’s contradictory and I am aware of that.” Eventually, all 6 dispensing collectives in the Bakersfield area closed, with one owner/operator crediting his decision to an alleged discussion where Sheriff Youngblood informed him of his intention to call the DEA to shut him down. The Sheriff himself took credit for these shutdowns in Business Week, saying that his own warnings, combined with the federal raids, have eliminated dispensing collectives in Kern County. "It is a federal crime, and federal law trumps California law," he says. Sheriff Youngblood then announced in 8/07 that he will not issue any more dispensing collective licenses (which is his job under the Kern County dispensing collective regulation ordinance) as he feels that he is helping people break the law. Sources are here, here, here, here, and here.
- On 3/29/07, DEA & San Luis Obispo County Sheriffs raided Central Coast Compassionate Caregivers in Morro Bay, confiscating medicine, and arresting 1 patient-employee on state charges. The Sheriffs spent the afternoon inside the dispensing collective with the DEA, taking down names and other information of patients arriving throughout the day. Sheriff's Sergeant and Public Information Officer Brian Hascall reported that the raid was the culmination of a year-long investigation by his Department. "The entire investigation started with us," Hascall said in a later interview. "I can't say why, but we started the investigation, and then because of the nature of the investigation, we requested the DEA's assistance, and it became a joint investigation between the two of us. That's common for it to be done that way." The Sheriffs did not get a state search warrant, and used a federal search warrant to carry out a local arrest warrant. Hascall explained that the Sheriff's Department has a duty to uphold both state and federal laws, pointing to the oath of office that requires them to support and defend the Constitution of the United States of America as well as the Constitution of the State of California. "That's where the conflict between the federal law and the state law becomes such a problem," Hascall said. Sarah Pullen, Public Information Officer for the DEA's Los Angeles field division said that the agency does typically use local law enforcement in all enforcement actions. Source
- On 7/17/07, presumably as a result of evidence gathered in the previous state-initiated raid, DEA arrested Charles Lynch (owner/operator of Central Coast Compassionate Caregivers) at his residence. He is currently being federally charged with manufacturing and distributing marijuana, distributing marijuana to a person under 21, possession with intent to distribute, maintaining a drug-involved premise, and aiding and abetting to distribute marijuana and his case is ongoing. Source
- On 9/27/06, DEA, IRS and Modesto PD raided the California Healthcare Collective in Modesto, confiscating medicine and arresting 4 patients. Modesto PD and DEA engaged in a 15-month investigation in which they sent officers to purchase cannabis from the clinic. Modesto Police Chief Roy Wasden’s gave a statement supporting the raid: "Make no mistake about it…It simply will not be tolerated." Sources here and here.
- On 12/12/05, and then again on 7/6/06, after a self-characterized joint investigation, DEA, San Diego County Sheriffs, and San Diego PD raided 11 dispensing collectives in San Diego under federal and state search warrants, confiscating medicine, arresting 6 on federal charges, and then pressured the rest of the city’s dispensaries to shut down. San Diego County DA Bonnie Dumanis filed state charges against five dispensing collectives and during the investigation, San Diego PD officers went to doctors to get recommendations and also visited dispensaries, posing as legitimate patients. After the raids, Dumanis put the unraided dispensaries on notice, saying, “We've raided some of you today. We'll raid the rest of you if you do not cease and desist. We'll raid you again and again.” Sources here, here and here.
Since the passage of the Compassionate Use Act over a decade ago, California courts have struggled to determine what a person must do to establish himself as the primary caregiver for a qualified patient. Providing marijuana alone, several courts have said, is insufficient even to have a jury hear a defense based on one's status as a primary caregiver. In People v. Mentch, which is pending before the California Supreme Court, the Court will provide further guidance. The Compassionate Use Act defines a "primary caregiver" as "the individual designated by the person exempted under [the Compassionate Use Act] who has consistently assumed the responsibility for the housing, health, or safety of that person." Because the California electorate has declared that marijuana is medicine, it is ASA's position that consistently cultivating marijuana for a qualified patient, standing alone, is sufficient to establish one's status as a primary caregiver. The Attorney General, on the other hand, has argued that one must do more, such as house, feed, or clothe the qualified patient. ASA's amicus brief seeks a definition of primary caregiver that is more faithful to the language of the Compassionate Use Act and the voters' intent.
Obfuscation by Kern County Officials Means No Access for Hundreds of Area Medical Marijuana Patients
In the latest saga of obfuscation by Kern County officials, District Attorney Ed Jagels has recommended the banning of dispensaries in the county. The Bakersfield Californian quotes Jagels in an October 10 article as saying, "I do not think we benefit from the cooperative/collective licensing ordinance." Who doesn't benefit, and what exactly are the problems caused by the existing ordinance approved by the Kern County Board of Supervisors in 2006? Let's be very clear about this. The people who stand to lose the most from a lack of dispensaries in Kern are the hundreds of patients now forced to travel to other counties to obtain their medical marijuana. Let's be clear about another thing. The Kern County Sheriff was appointed by the Board of Supervisors to oversee the dispensary permitting process as defined by the county's regulatory ordinance. The fact that Sheriff Youngblood cooperated with federal DEA agents to raid and close the same dispensaries that had been permitted by his office is cause for great concern. I wonder if Sheriff Youngblood understands that medical marijuana patients and providers are prevented from using medical evidence at their federal trial. Is it possible that Sheriff Youngblood couldn't figure out how to file charges under state law, or was he trying to ensure a conviction in federal court for conduct with which he disagreed, even if he had to violate his own ordinance to do it? There's one more thing to be clear about. The Kern County Board of Supervisors did the right thing in adopting the 2006 ordinance regulating dispensaries. The dispensaries that were permitted under the ordinance and the communities surrounding them had very few problems. But, Sheriff Youngblood wasn't the same Sheriff that took part in drafting the ordinance, and now he has succeeded in undermining both state and local law. The solution is not, as suggested by DA Jagels, to shut down dispensaries or ban them from Kern County. The best solution is one of the options offered by the Kern County Counsel -- maintain the current ordinance, but appoint another agency to oversee the permitting process. Kern County patients rely on these facilities, and it's up to county officials to figure out how to effectively regulate them.