ASA Activist Newsletter - JULY 2012
Volume 7, Issue 7
DEA Targets Another Locally Licensed Facility in California
Patient advocates in California rallied at the Sacramento federal building on June 11 in support of the city's first permitted medical cannabis dispensary. El Camino Wellness Center, which operates with union workers and has been serving patients since 2008, was raided by the DEA earlier in the month. Charges have not yet been filed against the center's operators, but the IRS has seized the facility's bank accounts.
Among those speaking at the rally were dispensary operator Suneet Agarwal, attorney James Anthony, and Dan Rush of United Food and Commercial Workers (UFCW) Local 5, which represents the center's employees.
'The Obama administration is betraying its promises and lying to the public,' said Kris Hermes, spokesperson with Americans for Safe Access (ASA), one of the groups that organized the protest. 'The President and the Attorney General have each recently said the Justice Department is not targeting state-compliant medical marijuana dispensaries, but that's exactly what it's doing.'
Since October 2011, the Justice Department has sent letters to more than 300 dispensary operators and landlords across California, threatening criminal prosecution and asset forfeiture. As a result of the threats, almost all of the nearly 100 dispensaries that were operating in unincorporated Sacramento County have closed. In the city of Sacramento, only 18 dispensaries remain of the original 34 that were issued permits, and many of those have received threat letters from federal prosecutors, including El Camino Wellness Center.
After the threat to El Camino Wellness Center's landlord, in November Sacramento City Council member Steve Cohn sent a letter to U.S. Attorney Benjamin Wagner stating his support for the center and its operator. Cohn called the dispensary a 'good neighbor' and said he hoped that 'federal authorities will work proactively with cities like Sacramento who are trying to implement and enforce reasonable ordinances in compliance with California law.'
In December, El Camino Wellness Center filed suit against Attorney General Holder and U.S. Attorney Wagner, claiming that the Justice Department crackdown violated the rights of medical cannabis patients and was aimed at preventing their state-legal access to medicine.
That month California Attorney General Kamala Harris wrote to the state's four U.S. Attorneys, calling the federal government 'ill-equipped to be the sole arbiter of whether an individual or group is acting within the bounds of California's medical marijuana laws.'
Attorney General Eric Holder faced tough questions before the House Judiciary Committee at the beginning of June over the crackdown on state medical cannabis programs.
Rep. Jerrold Nadler, D-N.Y. pressed Holder on why there have been more than 200 federal raids on state-authorized medical cannabis providers since 2009, given that as a presidential candidate in 2008, Barack Obama had promised that he wouldn't use 'Justice Department resources to try to circumvent state laws on this issue.'
While Holder acknowledged the Justice Department had pledged not to go after anyone acting within state law, he flatly denied that anyone in compliance has been targeted.
Holder claimed that the DOJ is only interested in people who have 'come up with ways in which they are taking advantage of these state laws and going beyond that which the states have authorized.' He insisted that “the only cases that we have been going after” are “those individuals (and) organizations that are acting out of conformity ... with state laws.'
The DEA has conducted at least 200 raids and federal prosecutors have brought at least 60 indictments against medical cannabis providers in states that have authorized their operation.
“Either the Attorney General doesn’t know what his people are doing, or he’s a bald-faced liar,” said ASA Executive Director Steph Sherer. “His prosecutors have threatened not just every landlord of a medical cannabis provider they can find but a host of state and local elected officials trying to implement the law.”
Says treatment decision is “between him and his doctor'Slowly but surely, the Drug Enforcement Administration is inching toward acknowledging the medical use of cannabis, something it has emphatically denied for decades.
DEA Administrator Michele Leonhart made headlines during an oversight hearing last month when she refused to say that using heroin or meth is more dangerous than cannabis. But it was an answer to a question from Rep. Steve Cohen (D–TN) that was momentous.
Asked whether or not it would be permissible for a Navy veteran to use medical cannabis to help with severe weight loss, Leonhart replied, “I think that’s between him and his doctor.”
“We applaud Ms. Leonhart for endorsing the rational, compassionate view of the vast majority of Americans,” said ASA Executive Director Steph Sherer. “Since she now says cannabis can be used under medical supervision, we would hope that the DEA will no longer oppose our petition to reschedule cannabis so it can be administered legally by all doctors.”
While the head of the DEA may have no problem with a veteran and his doctor devising a cannabis treatment program, Veterans Ad-ministration policy forbids VA doctors from discussing medical cannabis or filling out paperwork associated with state programs.
Video of questioning (exchange begins at 50:30)
VCA Policy on medical cannabis
Los Angeles County’s Ban on Cannabis Collectives OverturnedMedical cannabis dispensaries may not only legally operate in California, they cannot be banned by local officials, according to a landmark ruling from a state appeals court.
The July 2 decision affirmed the legality of medical cannabis dispensaries under state law and overturned LA County’s complete ban on dispensaries. Such bans are preempted by state law, according to the ruling by the Second District Court of Appeal. The decision in County of Los Angeles v. Alternative Medicinal Cannabis Collective reverses a preliminary junction granted to the County by the Los Angeles Superior Court in May 2011.
In a strongly worded opinion, the court held that, '[Los Angeles] County's total, per se nuisance ban against medical marijuana dispensaries directly contradicts the Legislature's intent' in ways that are 'direct, patent, obvious, and palpable.'
Some law enforcement officials have argued that storefront dispensaries are not covered by California state law, but the court ruled that 'the repeated use of the term 'dispensary' throughout [Health and Safety Code section 11362.768] and the reference in subdivision (e) to a 'storefront or mobile retail outlet' make it abundantly clear that the medical marijuana collectives authorized by section 11362.775 are permitted by state law to perform a dispensary function.'
'This is an unequivocal ruling for safe access,' said Joe Elford, ASA Chief Counsel. 'Because medical cannabis dispensaries are legal under state law, municipalities have no right to ban them.'
The appellate decision in the LA County case comes as a number of other state appellate court rulings on dispensaries are under review by the California Supreme Court, including Pack v. City of Long Beach, which addresses how localities can regulate distribution, and City of Riverside v. Inland Empire Patient's Health and Wellness, which deals with whether municipalities can permanently ban distribution.
Ruling in County of Los Angeles v. Alternative Medicinal Cannabis Collective
Lower court ruling in County of Los Angeles v. Alternative Medicinal Cannabis Collective
Legislature again unable to overrideFor the second time in three years, New Hampshire governor John Lynch (D) has thwarted state lawmakers’ effort to provide safe access to patients in the state. The state Senate last week failed to muster the two-thirds majority needed to override the governor’s veto of the bill passed early in June. Lynch vetoed a similar bill in 2009.
The Republican-sponsored bill, which enjoyed broad bipartisan support, would have allowed qualified patients or designated caregivers to cultivate and possess up to six ounces of marijuana, as well as four mature plants and 12 immature plants. The measure, SB 409, passed in the state house by an overwhelming vote of 236-96 but by a narrower margin in the senate.
Lynch said he vetoed the bill because allowing personal cultivation would prevent the state from limiting the number of cultivation sites and make it impossible to control distribution and prevent illegal use. SB 409 originally called for distribution through 'Alternative Treatment Centers,' but that provision was dropped from the bill during deliberations.
'Our hearts go out to all the medical cannabis patients in New Hampshire who remain criminals under the law despite the best efforts of their elected representatives to protect them,' said Steph Sherer, Executive Director of Americans for Safe Access. 'A lame-duck governor has no business thwarting the will of the people, particular when it inflicts further hardship on the sick and suffering.'
Connecticut became the 17th medical cannabis state last month, joining the States of Alaska, Arizona, California, Colorado, Delaware, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington, as well as the District of Columbia.
Text of SB 409
AB 2312, once considered dead in committee, won approval in the Assembly after a community lobbying effort led by ASA and other organizations. It was awaiting a Senate hearing. ASA and other advocates had raised concerns over last-minute amendments that might have made it easier to ban the operation of medical cannabis collectives and cooperatives. As originally written, the bill would have established an oversight board for dispensaries and made it difficult to ban them.
California state law on the operation of medical cannabis collectives has been subject to differing interpretations and court rulings. Currently, local regulations vary wildly.
'We’re disappointed, but we've made progress,' said ASA California Director Don Duncan. 'We've forged a powerful coalition and shown state lawmakers that patients and their advocates are a force to reckon with.'
AB 2312 was initially supported by the AFL-CIO, UFCW National Medical Cannabis and Hemp Division, UFCW Western States Council, UFCW Local 5 and the California Medical Association. Polling shows 77% of Californians support state regulation of medical cannabis.
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