ASA Activist Newsletter - AUGUST 2012
Volume 7, Issue 8
D.C. Circuit to hear arguments in appeal of cannabis reschedulingThe scientific evidence on medical cannabis will be considered by a federal appeals court this fall as the result of a lawsuit that could force the government to change its policies.
ASA's challenge to the government's denial of a rescheduling petition has been granted a hearing by the United States Court of Appeals for the D.C. Circuit. Oral arguments in Americans for Safe Access v. Drug Enforcement Administration, scheduled for October 16 at 9:30am, will be the first opportunity in decades for a federal court to hear the full scope of scientific evidence on the therapeutic applications of cannabis.
ASA had filed suit to force government action on the petition, setting the stage for next October's court hearing. The DEA is the final arbiter on petitions to reclassify controlled substances, but other agencies are also involved in the review process.
'Medical cannabis patients will finally get a chance to debunk politically motivated decision-making with scientific facts in open court,' said Joe Elford, ASA's Chief Counsel. 'Much is at stake – our country's scientific integrity, the medical needs of millions of patients, and an escalating conflict between the federal government and state health programs.'
The U.S. federal government classifies cannabis as a highly dangerous drug with no medical uses, despite overwhelming evidence to the contrary. After nearly a decade of delay, the DEA last July rejected the petition brought by the Coalition for Rescheduling Cannabis (CRC), of which ASA is a member.
ASA filed its appeal of the DEA's rescheduling denial in January. ASA's appeal argues that cannabis is treated unlike any other controlled substance in that rescheduling petitions are encumbered by political considerations, and medical research on cannabis in the US is subjected to a unique and overly rigorous approval process.
ASA's brief to the court says the federal government has acted arbitrarily and capriciously and should not be allowed “to apply different criteria to marijuana than to other drugs, ignore critical scientific data, misrepresent social science research, or rely upon unsubstantiated assumptions, as the DEA has done in this case.' ASA is urging the court to 'require the DEA to analyze the scientific data evenhandedly,' and order 'a hearing and findings based on the scientific record.'
Hearing the case in Washington, D.C. are Senior Circuit Judge Harry T. Edwards and Circuit Judges Karen LeCraft Henderson and Merrick B. Garland.
Currently federal rules of evidence prevent medical cannabis defendants from presenting any medical facts or a state law defense in federal court. If the rescheduling lawsuit is successful and cannabis is reclassified consistent with the scientific consensus on its safety and efficacy, federal defendants will have a basis for a medical necessity defense.
Under the Obama Administration, federal interference has escalated beyond raids and prosecutions of providers and patients to threats against state and local officials responsible for implementing the programs. Seventeen states and the District of Columbia have established medical cannabis programs to provide access for patients whose doctors recommend it for treatment.
D.C. Circuit announcement of oral arguments
ASA appeal brief
DEA denial of CRC petition
CRC rescheduling petition
'We're here to let the President know that shutting down law-abiding dispensaries carries costs for not just our community but his campaign,' said Steph Sherer, Executive Director of Americans for Safe Access, one of the groups that organized the rally. 'Patients are losing access, workers are losing jobs, the city is losing tax revenue, and he is losing supporters.'
The most recent action is a move by U.S. Attorney Melinda Haag to shut the two locations of the Bay Area's largest and most well-known dispensary, Harborside Health Center. That elicited outrage from both patients and public officials, including Oakland City Attorney Barbara Parker, State Assembly member Tom Ammiano (D-San Francisco), and Betty Yee of the State Board of Equalization, which collects more than $100 million in annual sales tax revenue from California's dispensaries.
ASA and other advocates held a press conference two blocks from the President's fundraiser at Oaksterdam University, an educational facility for training medical cannabis professionals that was the site of an April DEA raid that shut down its licensed dispensary, Blue Sky.
'An attack on the access to patients is an attack on the patients themselves,' Don Duncan, ASA California Director told the crowd. Other speakers included patient Yvonne Westbrook-White, who received medicine from Oaksterdam's student garden that she used to treat her multiple sclerosis, and Jason David, whose young son suffers from a severe form of epilepsy called Dravet syndrome that is effectively managed with cannabinoid tinctures David obtains from Harborside.
In May, the Alameda County Democratic Party Central Committee unanimously adopted a resolution decrying the federal raids as 'a breach of promise and ill-directed use of taxpayer dollars' and calling on the federal government 'to adhere to Administration promises about respecting state laws on medical marijuana by directing federal agencies to cease and desist from any further such action in California.'
As the President's motorcade took him through Oakland, the more than 300 medical cannabis patients and advocates marched peacefully through downtown to City Hall. Many local businesses flew green flags to show support.
The night before the President's arrival, advocates projected on the outside of the campaign's Oakland headquarters his promise from his last campaign not to use federal resources to interfere with state medical cannabis programs.
Watch video of the action: Images projected onto Obama's Oakland Campaign HQ
Bill Would Lift Ban on Medical, State Law Evidence in Federal CourtIf a bipartisan bill before Congress becomes law, medical cannabis patients and providers will no longer be prevented from presenting medical or state law evidence in federal trials.
In what has become an annual ritual over the past decade, the “Truth in Trials” Act, HR6134, was reintroduced last month by Rep. Sam Farr (D, CA-17) with 18 bipartisan co-sponsors.
“The federal government has tilted the scales of justice towards conviction by denying medical marijuana defendants the right to present all of the evidence at trial,” said Rep. Farr. “My bill would restore due process rights to law-abiding citizens acting within the parameters of state and local laws. Juries should hear the entire story of a patient’s medical marijuana use before choosing to convict, not the heavily edited version they currently hear.”
Under the Obama Administration, more than 70 state-authorized individuals have been indicted on federal marijuana charges, despite the President’s promise that he was “not going to be using Justice Department resources to try to circumvent state laws on this issue.”
“Defendants in medical marijuana states deserve fair trials.” said Steph Sherer, ASA Executive Director. “It’s absurd to claim patients or providers were not complying with state law but prevent them from proving they were.”
Federal sentencing rules mean that state-authorized medical cannabis patients and providers face harsh mandatory sentences of up to 20 years in federal prison if convicted. Most state programs require providers and patients to provide information on their cannabis possession and cultivation that ensure conviction in federal court. As a result, federal charges typically result in patients and providers accepting plea bargains to reduce federal prison time.
The House bill was first introduced in 2003 following the federal conviction of an Oakland man who had been deputized by the city to provide small starter plants to patients.
Text of 'Truth in Trials' Act
Fact sheet on the 'Truth in Trials' Act
City and State Officials Denounce Action against Permitted CenterFederal prosecutors want to seize the property of a California medical cannabis dispensary that was the subject of the popular reality TV show Weed Wars.
The action by U.S. Attorney Melinda Haag against Harborside Health Center was denounced by Oakland's mayor and other local and state elected officials at a July 12 press conference at Oakland City Hall.
'Harborside has nothing to hide or be ashamed of,' said Harborside Executive Director Steve DeAngelo in a prepared statement. 'We will contest the DOJ action openly and in public, and through all legal means at our disposal. We look forward to our day in court, and are confident that justice is on our side.'
Harborside Health Center was served with a federal civil complaint for 'forfeiture of property' earlier that week at their locations in Oakland and San Jose. The dispensary has a city permit to operate and has been serving the community since 2006 without incident. The forfeiture action is against the 'third-party' property owner, Real Property and Improvements.
Harborside employs over 100 people and is Oakland's second largest retail tax payer. Last year, the dispensary paid combined taxes in excess of $3 million, over a million dollars of which went directly to the City of Oakland.
Since the four U.S. Attorneys in California announced last October that they would be targeting medical cannabis distribution centers, more than 400 dispensaries in the state have shut down, mostly under threat of federal criminal prosecution or asset forfeiture. Federal prosecutors have sent at least 300 letters to property owners in California, threatening federal action if they don't evict their dispensary tenants.
'The Obama Administration's claim that it's not undermining state medical cannabis laws can't be reconciled with the actions of its prosecutors,' said Don Duncan, ASA's California Director. 'The Attorney General and the President must be held accountable for actions by their U.S. Attorneys that are undoing the hard work of elected officials and harming untold numbers of patients.'
Asset forfeiture civil complaint for Oakland property: http://american-safe-access.s3.amazonaws.com/documents/Forfeiture_Complaint_Harborside_Oakland.pdf
Asset forfeiture civil complaint for San Jose property: http://american-safe-access.s3.amazonaws.com/documents/Forfeiture_Complaint_Harborside_San_Jose.pdf
The council also voted 9-5 to direct the city attorney's office to draft an ordinance that would allow the continued operation of the 182 dispensaries that had registered with the city in 2007 when the regulatory process was begun. In the meantime, the ban will take effect after being signed by Mayor Antonio Villaraigosa, who has said he supports the ban.
'After four years of hearing from patients who rely on medical cannabis to ease their suffering, it is outrageous that the city council would decide to simply outlaw its distribution,' said Don Duncan, ASA's California Director. 'The tens of thousands of Angelenos harmed by this vote will not take it sitting down. We will campaign forcefully to overturn this decision.'
The ban passed despite the more than 10,000 letters the council received from medical cannabis patients and their supporters urging the adoption of sensible regulations. ASA and other advocates have begun the steps to place a referendum before Los Angeles voters to reverse the ban.
Whether municipalities may legally ban activities such as the distribution of medical cannabis that are explicitly authorized by state law is subject dispute, with cases pending before the California Supreme Court.
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