Pages tagged "legal"
After nine years of delay, the DEA finally denied the Coalition for Rescheduling Cannabis (CRC) petition to reschedule marijuana. While this may superficially seem like a setback, it now allows us to get a more fair hearing in federal court. We even had to to file a lawsuit in federal court to compel any action on this decision, so it is a step in the right direction that we received a final administrative action on the rescheduling petition to set the stage for a court battle. Now, we can present our evidence to a tribunal that will listen.
Already, Time posted an article concluding that science demonstrates the following:
if an appeals judgment were based on scientific evidence, rather than political considerations this time around, it's easy to imagine a very different outcome.
Similarly, the International Business Report posted an article entiled, "Did U.S Government Miss the Mark with Medical Marijuana Ruling?" You can guess the answer (or click on the link for the result). The short of it is that we are getting a chance in court and we need to make the most of it. And we will.
More by a confluence of circumstances than by design, the federal government made clear this past week its intolerance to medical cannabis as well as its intolerance to the independence of local and state governments to decide their own public health policies. The irony of the U.S. Department of Justice issuing formal threats against the autonomy of local and state officials on the eve of Independence Day is not lost on many who are paying attention to this latest power grab by the federal government.
When was the last time you remember local and state officials being threatened en masse with criminal prosecution by the federal government for implementing their own public health laws? This egregious attempt by the fed to seize unwarranted authority over the states should be a concern not only to the medical cannabis patient community, but also to those who believe in the importance of local autonomy in a federalist system of democracy.
There are, however, historical demons in our states’ rights closet too, not the least of which is the amalgam of state laws enacted to resist federal desegregation efforts during the Civil Rights era. However, there must be ways to protect people from harm and bigotry using our federalist system of government, without ceding omnipotence to the fed and giving up the rights of states and their localities to care for the health and welfare of their people. There is no doubt that the fed is attempting to set a precedent that will allow them to usurp control from local and state governments and inhibit their ability to pass their own public health laws.
This is a time to rise up in opposition to the federal government and its abuse of authority. This is not a time to cower and buckle to intimidation. The States of Arizona, California, Montana, New Jersey, Rhode Island and Washington have either suspended or gutted parts of their medical cannabis programs in response to threats from U.S. Attorneys. However, the State of Delaware recently passed the country’s 16th medical cannabis law, including the licensing of distribution centers, despite awareness by the legislature and Governor Jack Markell that the new law contradicted parts of federal law. Vermont Governor Peter Shumlin signed a bill to regulate and license medical cannabis distribution centers in his state despite a threatening letter sent by U.S. Attorney Tristram Coffin to Vermont’s Public Safety Commissioner.
If local and state officials want to maintain their independence, they must take a cue from the States of Delaware and Vermont and stand up to the federal government. Governors, state attorneys general, legislators, county supervisors, city council members and others must join together and fight back against this latest encroachment.
To be sure, medical cannabis patients are not going away. If the federal government refuses to recognize the therapeutic benefits of cannabis and develop a sensible public health policy, then states must be allowed to do so in its place. As we celebrate our freedom from government tyranny on this July 4th, let’s also be resolute in our stand against tyrannical acts by the Obama Administration.
There has been much concern lately in the medical cannabis community related to the issue of patient privacy. As Drug Enforcement Administration (DEA) raids occurred in Michigan, Montana, and Washington, federal agents have seized hundreds of patient records. Most recently, U.S. Magistrate Judge Brenneman, Jr. ruled that the Michigan Department of Community Health must turn over several patient records to the DEA for further investigation of "possible drug crimes," despite that state’s patient privacy law. The notion that federal investigations should give the government unfettered access to protected patient information is extremely problematic and a violation of federal and state rights to privacy. Despite this overt invasion of privacy, Americans for Safe Access intends to appeal Brenneman’s ruling in order to protect patient privacy in Michigan.
Some positive progress is also being made in other states. On June 24, 2011, Maine Governor Paul LePage signed into law LD 1296, which eliminates the requirement of doctors to disclose personal, medical or other identifying information about medical cannabis patients to the state. This law provides legal protection to medical cannabis patients and keeps their information private. This law also limits the ability of police to take property from patients, requiring them to return any unlawfully seized property within seven days. "LD 1296 was a huge success in a Republican era and brought our law back to its initial intent of patient privacy and voluntary registration. The Maine Civil Liberties Union's presence was incredible," stated Charles Wynott, of Maine's Medical Marijuana Patients Center.
Patient privacy is an important ethical and public health issue of our time, regardless of whether patients benefits from the use of medical cannabis. We must not lose sight of upholding those rights for all patients, but because cannabis is still illegal under federal law we must especially preserve those rights when medical cannabis patients are involved. At a time when many states are taking steps backwards with regard to medical cannabis laws, Maine has set a wonderful precedent by stepping forward in spite of federal pressure to do otherwise.
The District of Columbia Circuit issued an order yesterday requiring the Drug Enforcement Administration to answer our petition for writ of mandamus. While this doesn't require the government to actually answer the rescheduling petition filed in 2002 by the Coalition for Rescheduling Cannabis, it is certainly a step in the right direction.
The federal government indicted three people yesterday in Montana, continuing its campaign to undermine medical marijuana laws across the country. The indictment against Jason Burns, Joshua Schultz, and Jesse Leland who were providing medical marijuana to state-qualified patients in Montana, is a result of 26 raids executed in March by no less than 8 federal agencies and an array of local law enforcement.
Despite an October 2009 Justice Department memorandum de-emphasizing federal enforcement against medical marijuana, President Obama has been responsible for more than 100 aggressive SWAT-style federal raids in at least 7 states since taking office. Yesterday’s indictment is added to a list of more than 2-dozen similar medical marijuana-related indictments in the past 2 years.
Whether or not you agree that medical marijuana patients and providers accused of local or state law violations should be tried in state court – we certainly do – they should be given a chance to defend themselves. Unfortunately, patients and providers prosecuted in federal court are prevented from using a medical or state law defense. U.S. Attorneys know this and use it to their advantage to unfairly try medical marijuana defendants like Burns, Schultz, and Leland. Whether they are accused of making a profit or somehow violating state law matters not in federal court and it will never be raised as an issue at trial. In fact, federal prosecutors will even object to the words “medical marijuana” being used in front of the jury.
Let’s call a spade, a spade. The federal government goes after medical marijuana providers because it’s easy. People bold enough to commit federal civil disobedience every day to bring medical marijuana to patients who need it and are qualified to use it do not hide in the shadows. Many are listed in the phone book or on other public lists. They often run storefront businesses and some even advertise. Federal enforcement against medical marijuana providers is like picking low hanging fruit.
Once in federal court, U.S. Attorneys need only to show that marijuana was present and that it was being provided to another person and, presto, you can convict anyone on an array of federal felonies. If the provider places his or her proceeds in a bank, you can add money laundering and other financial offenses to the list of felonies.
The problem is that the federal government isn’t just racking up more points in its insatiable “war on drugs,” it’s also, and more importantly, playing with people’s lives. In a letter sent earlier this week to U.S. Attorney General Eric Holder, Congressional members Barney Frank (D-MA) and Jared Polis (D-CO) explain that targeting medical marijuana providers:
harms the people whose major goal is to seek relief from pain wholly caused by illness.
Holder would do well to heed the Congressmen’s words and let local and state officials enforce their own medical marijuana laws. It makes economic sense and it brings this country closer to addressing medical marijuana as the public health issue that it is.
In an 8-1 decision, a third state supreme court -- in this case, the Washington Supreme Court -- issued a negative decision regarding the employment rights of medical marijuana patients. In Jane Roe v. TeleTech Customer Care Management, LLC, the Washington Supreme Court held that Washington's Medical Use of Marijuana Act (MUMA) does not provide any civil remedy to a medical patient who is terminated from employment because of testing positive for the off-site use of marijuana.
Following in the footsteps of the California Supreme Court's decision in Ross v. Ragingwire, the court held that Washington's MUMA provides a defense only to criminal sanctions, and does not afford any civil protection against discrimination by private employers. But, as the dissent points out, MUMA expressly states that:
[a]ny person meeting the requirements appropriate to his or her status under [MUMA] shall be considered to have engaged in activities permitted under this chapter and shall not be penalized in any manner, or denied any right or privilege, for such actions.
Thus, "Roe seems to be exactly the sort of person the people intended to protect."
The dissent concludes by "urg[ing] the legislature to thoughtfully review and improve the act," which is precisely what Americans for Safe Access has been seeking to do in the State of California and will continue to do so in next year's legislative session. Studies have shown that medical marijuana use does not impair workplace safety. It is about time that courts recognize this and provide employment protection to medical marijuana patients, as the voters intended.
The federal government will not arrest and prosecute local and state officials and others who are lawfully complying with medical cannabis laws.The patient community has been the most directly affected by the ambiguity of the Ogden memo, and want to be included in the conversation to clarify it. You too can take action, and suggest that Holder issue a policy statement to end federal interference with those who comply with state law.
At a press conference earlier today in Providence, Rhode Island, U.S. Attorney General Eric Holder was peppered with questions about medical marijuana. This is understandable, given that a month ago U.S. Attorney Peter Neronha sent a letter to Rhode Island Governor Lincoln Chafee and other state officials threatening:
[C]ivil or criminal remedies against those individuals and entities who set up marijuana growing facilities and dispensaries.
Holder responded that the White House policy outlined in the Ogden memo, which de-emphasized federal interference, “made sense given…the limited resources that we have.” Addressing the obvious discord between policy and practice, Holder said he was working in Rhode Island and other parts of the country to “clarify what this policy means and how the policy can be implemented.”
Holder further stated that:
What we have to do is try to effectuate that policy in a way that we give comfort to somebody who is using it appropriately.
Patient advocates are pleased that Holder wants to clarify this glaring contradiction in Justice Department policy. Rhode Island was not the only state to endure threats from U.S. Attorneys. The Justice Department sent letters to local and state officials in at least 10 different states. These letters and the ongoing federal Drug Enforcement Administration (DEA) raids occurring across the country have had a devastating impact on patients’ rights and safe access. Programs have been suspended not only in Rhode Island, but in Arizona and New Jersey as well. State and local laws were arguably curtailed by federal interference in California, Montana and Washington.
Holder did say that he wants the process of clarifying federal policy to involve “dialog” and “communication.” We certainly hope he includes patients -- the ones directly affected by these policies -- in the dialog. But, we’re not waiting for his invitation so stay tuned for ways to make your voice heard.
Governor Peter Shumlin signed a bill today that would license multiple medical cannabis distribution facilities in Vermont. Patients and advocates wildly applauded the governor’s action for two main reasons:
- It recognizes the need for patients to have health care options, including the ability to safely and legally obtain their medication; and
- It defies recent attempts by the federal government to harass and intimidate public officials to prevent them from properly addressing patients’ needs.
[T]he [DOJ] will carefully consider legal remedies against those who facilitate or operate marijuana dispensaries or marijuana distribution or production as contemplated by S. 17, should that measure become law.
We need more elected officials like those in Vermont, who won’t buckle to federal bullying and who are willing to stand up for the health and welfare of patients. Notably, Delaware took similarly decisive action last month, when it passed the 16th state medical marijuana law, which includes provisions for production and distribution.
However, this type of leadership is far too rare today. We can’t give elected officials any reason to controvert science and the will of the people. We must hold them accountable at the same time as commending Shumlin and others who are willing to take a stand for patients.
By: Terrie Best and Eugene Davidovich - San Diego Americans for Safe Access
SAN DIEGO – In the summer of 2009, Benjamin Gasper, along with two other seriously ill medical marijuana patients rented a warehouse space in the Sports Arena area of San Diego in a heavily commercial district far from residences and other “sensitive uses,” and began to collectively cultivate medical marijuana there, for their own personal medical needs.
In fact, all three members of the collective, as court documents have shown, signed an agreement which stated, “As qualified medical marijuana patients under California law, we choose to associate collectively or cooperatively to cultivate marijuana for medical purposes. All members of our medical marijuana collective will contribute labor, funds, or materials, and all will receive medicine.”
In November of 2009, several policemen entered the premises to conduct a “safety check”; according to the officers, they believed a burglary might have been in progress as the front warehouse roll up gate was slightly ajar. After over thirty minutes of searching, they happened on the entrance to the cultivation room which was completely isolated and sealed off from the main part of the warehouse.
After discovering and rummaging through the patient garden, even though the collective agreement, doctor’s statements and ID’s for all the members of the collective were present on site, they still arrested and charged Mr. Gasper with cultivation of marijuana.
In later court proceedings both members of the collective would testify on the stand they had signed the agreement and all actively contributed their labor, and money to the effort from the beginning all the way until the day of the raid.
Having gone through months of court proceedings and multiple hearings, Mr. Gasper’s charges were finally thrown out by a judge at 995 hearing in June of 2010.
Bonnie Dumanis the San Diego District Attorney (DA) however, did not give up persecuting Mr. Gasper. In line with her ‘fierce fight’ against patients and her commitment to waste precious law enforcement resources on investigating and prosecuting these cases; the charges were refilled and an entirely new case started.
Many thought that if the charges had been previously resolved in another case, re-filing the same charges would be ‘double jeopardy.’ This is unfortunately not the case. Through a technicality in the law, the prosecution circumvented the ‘double jeopardy’ clause, and filed the same charges against Mr. Gasper this time hoping for a different judge and a better outcome.
On Wednesday, May 18, Mr. Gasper was in court again, this time, for his second preliminary hearing this time in front of the Honorable William H. Kronberger.
Representing Mr. Gasper in his second case was defense attorney and San Diego Americans for Safe Access board member Melissa Bobrow. For Dumanis’ office, hand-picked by Bonnie Dumanis herself to oversee the prosecution in this case as well as all other medical marijuana cases in San Diego County, was veteran ‘chief patient prosecutor’ Steve Walter.
In describing how Mr. Gasper was identified to be arrested in 2009, at the hearing on Wednesday, the cross-deputized SDPD Detective/Federal Agent, John Joseph Tangredi testified that he and Skylar Voyce, another NTF agent on the scene, found Mr. Gasper’s contact information posted neatly on the wall, so they simply dialed him up, told him his place had been raided and arrested him on the spot as soon as he arrived a few minutes after their call. Tangredi went on to testify that only later did they obtain a search warrant for the premises via telephone.
The detective claimed they discovered “134 cannabis plants in various stages of development”, even though court qualified expert witness William J. Britt at the preliminary hearing in the first case had examined the plants and determined otherwise. At the first preliminary hearing, Mr. Britt testified that the majority of the plants discovered during the search were either dead branches the detectives seemed to have counted as individual plants, or un-rooted cuttings that had recently been planted and were preserved for a future harvest.
Mr. Britt also determined that the amount of actual usable medicine (plants, dried flowers, etc.) was absolutely reasonable for the collective to have, based on the patients’ individual conditions and size of the effort compared with other similar collectives across the state.
At Wednesday’s hearing the detectives true intentions and bias began to surface when Tangretti testified that he believed Gasper’s grow itself to be indicia of sales even though when cross examined by Ms. Bobrow he admitted to finding no scale, packaging, pay and owe sheets or any other materials indicia of sales.
Tangredi further testified that in his ‘expert’ opinion, backed up by his claims of a meager 1.5 hours of training, the 134 plants (mostly dead branches) would have yielded a whopping 150 pounds of dried flower had they been allowed to mature.
The defense’s expert witness, William Britt again testified that the amount was completely reasonable and would more likely have yielded five pounds of dried flowers at most. Compared with Detective Tangredi’s 1.5 hours, Mr. Britt’s training includes hundreds of hours of both in-class and hands on training in medical cannabis yields, dosages, cultivation techniques, and use of medical cannabis by qualified patients.
DA Walter’s cross examination of Mr. Britt was focused on the absence of a defined dosage amount on Mr. Gasper’s recommendation. Mr. Britt explained the lack of scientific data and the illegality of writing prescriptions for specific dosages as the primary reason why no amount was specified.
Also testifying for the defense at Wednesday’s hearing was one of the other members of Mr. Gasper’s collective. Prior to his testimony, in a thoughtful move, the Judge ordered an attorney be assigned to advise the witness of his rights and be on hand during Walter’s cross examination to specifically represent the patient. Walter’s cross examination of the collective member included a barrage of questions about what the patient’s specific task were in the cultivation effort along with personal questions into the patient’s medical condition.
In the end, even though there was overwhelming evidence of clear and unambiguous compliance with State law, Mr. Gasper second case was bound over for trial with the judge explaining that inasmuch as the 134 plants seemed to be above the safe harbor amount allowed, he would have required a physician to take the stand and testify to medical necessity in order to consider the charges for dismissal.
The Judge conceded however, that due to the lack of scientific research on recommended dosages, the law was difficult to understand even for him.
Adapting well, Ms. Bobrow, highlighted in her arguments that navigating this law for Mr. Gaper has been arduous as well and that aside from the many other reasons why this case should be thrown out of court, on the vagueness of the law alone the case should be dismissed.
The Judge disagreed and cited a lack of precedent in these sorts of cases as his reason. He sent Mr. Gasper on to face trial and set the issue for the jury to determine.
Following Wednesday’s hearing, attorney Melissa Bobrow said, “Although Judge Kronberger did come to reasonable conclusion based on the lack of precedent, it is unfair for legitimate patients and caregivers trying to follow the law to be dragged through the criminal courts. The DA’s office should provide clarity on the law through a guideline rather than through continuing to expand resources on cases like this, which should have never been pursued in the first place”.
Medical cannabis patients in San Diego continue to be in a situation where the only way for them to prove they were following the law, is to be dragged through criminal court proceedings and trials that ruin lives and cost taxpayers hundreds of thousands of dollars.
Mr. Gasper remains free on his ‘own recognizance’ and will be arraigned on June 2nd. At 1:30 in Department 11 of the San Diego Superior Courthouse.
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