Back In the Closet California medical cannabis patients are increasingly being forced to hide behind closed doors as bans on dispensaries and home cultivation sweep through the East Bay
April 29, 2014 | Kris Hermes
David Downs, East Bay Express
The pain started for Randy Barrett when he was thirteen years old. He was whipping a three-wheeled motorcycle around the hills of Martinez. Back then, riding ATVs was "just part of life," he said. "This was the Seventies and Eighties. We had dirt bikes; we had three-wheelers — the ones with a big old front rubber tire. I was driving around in the dirt and hit a patch of concrete in the road that caught the front tire and shot me forward."
Barrett's chest bent around the handlebar and he "flew off and flipped and landed in someone's front yard," he said.
He didn't go to the hospital. He went home and told his mom. '"Just walk it off,'" Barrett recalled his mother saying. '"It's going to be okay. Just go to bed.' That was just how it was back then."
Barrett walked it off, and went to bed. The teenager healed and eventually forgot about the motorcycle accident, until decades later, when, in 2010, a doctor told him that he had dislocated some ribs and vertebrae in his back and neck during the childhood incident. "The doctor told me to take my shirt off and asked, 'Did you get hit in the chest before?' I said, 'Not really.' He said, 'Really? There's this mark right across your chest. It looks a bar had hit it.' The motorcycle accident — that was it."
The former Safeway truck driver is now 42 years old, married, and has a six-year-old son. He's also a stay-at-home dad with chronic neck and shoulder pain. And like millions of Americans, Barrett was prescribed Vicodin for his pain. "But it turned me into a jerk," he said. "I was always angry and uptight."
By this time, however, Barrett was already open to alternative therapies. Back in 2004, he had developed stomach cramps and soon thereafter began drinking Pepto-Bismol every day for relief. Doctors diagnosed him as having irritable bowel syndrome (IBS), and so he began ingesting large doses of the antacid Prilosec. But the resulting lack of digestive fluid wrought havoc on the rest of his bowels, he said. Later that same year, doctors put him on Bentanyl, Tagament, Latadine — bowel, ulcer, and allergy medications, respectively.
"Nothing ever seemed to work," Barrett said.
Then one day that year, Barrett was hanging out with a buddy, carping about his cramps, when his friend passed him a joint. The relief was immediate. "Within a few minutes my stomach cramps were gone. I was in shock," he said. "I just thought smoking weed got you high back then. Then I started reading about how it helps with all this stuff."
But Barrett didn't try to get a doctor's recommendation for marijuana — which has been shown in human trials to treat similar bowel disorders — until four years later in 2008. Barrett's doctor, however, quickly turned him down. The physician worked for Contra Costa County and wouldn't write a recommendation for medical cannabis. "But he said, 'I'm glad you found something that works,' and smiled real big and stuck his hand out," Barrett recalled.
Barrett got a printed copy of his diagnosis for IBS, took it to the medical cannabis clinic MediCann USA in Concord, and got a recommendation to use marijuana. He then started driving to Oakland once or twice a week to purchase small amounts of different strains of medical pot and edibles, seeing what worked best. He hit every dispensary in Oakland, Richmond, and Berkeley. Harborside was the best, he said, but he hated driving his 1994 Ford Explorer that far. The cost of gas was astronomical, and that was on top of a month's worth of medication (about an ounce) — which cost $400 to $500.
So that same year, Barrett decided to buy some cuttings of pot plants at Harborside. He put six of them in the soil outside his Martinez home, but the crop quickly failed. The next year, in 2009, he got some seeds, "but none of them germinated," he said. A friend took pity on him and gave Barrett six female plants. That crop did well, with buds the size of his thumb, he said. But, he said, "Those got ripped off from me, actually."
So Barrett turned his aboveground Doughboy swimming pool into a greenhouse. In 2010, he succeeded in growing a crop of Sour Diesel. Ditto for 2011, 2012, and 2013. None of the neighbors complained, and he figures that growing weed costs him only $5 an ounce.
Barrett convinced his mother, father, and sister to also obtain medical pot recommendations, since they were already using cannabis for insomnia, anxiety, and pain. Barrett's dad had both hips replaced and is still trying to get off Vicodin.
Barrett, in fact, used pot to get off Vicodin in 2012. Clinical trials have shown that smoking cannabis significantly reduces chronic pain for people taking opiates and allows them to ingest fewer pills. He also quit smoking tobacco. He learned how to create concentrated cannabis extracts, and was planning to help treat his great aunt's lung cancer with CBD oil, which has anti-tumor properties, according to cell and animal studies.
Barrett knows he should be prepping the garden this time of year. Cannabis goes in after the last spring rains, grows through the summer, and flowers as the sunlight wanes in fall. But Barrett has stopped preparing. On April 16, the Martinez City Council voted to ban all outdoor medical marijuana cultivation.
"I want them to stop messing with us," Barrett told me before the vote. "We're just growing our medicine."
Residents of Berkeley, Oakland, Richmond, and San Francisco might not think about it much, but hundreds of thousands of medical cannabis patients and their allies are in an unprecedented struggle across California. A battle is raging in the wake of a 2013 state Supreme Court ruling that affirmed the right of cities and counties to ban dispensaries. And local governments are now using that decision to also prohibit medical marijuana cultivation for personal use and to levy fines against growers of up to $1,000 per plant on growers.
Based on unfounded, outdated, and narrow-minded fears about crime, odor, and child safety, these bans strike at the very core of voter-approved Proposition 215, which reads:
"The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows: (A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician."
Yet despite that groundbreaking law, the vast majority of Californians now live in cities and counties that have enacted bans on medical pot dispensaries, including much of Alameda and Contra Costa counties. In addition, more than a dozen cities and counties — including Concord and Martinez — have banned all outdoor growing, and a few cities are prohibiting all cultivation. Legal challenges to the more sweeping bans are pending, but the pain is immediate.
"People are definitely being hurt," said Lanny Swerdlow, a registered nurse in Riverside, a Southern California city that is in the heart of ban country. "We are going backward."
Patients, as a result, are now commuting long distances to find dispensaries, calling up unlicensed mobile dispensaries they find on WeedMaps and Craigslist, or growing their own pot when they can. And in cities where medical cannabis is totally banned — like Fresno — they are defying the law or going without medication.
"You can never argue that a sick person with epilepsy who may not even have a driver's license should have to drive even ten miles to get medicine," said David Spradlin, operator of the River City Phoenix dispensary in Sacramento and Magnolia Wellness in Oakland, "that someone going through their third chemo and needs some medicine, that they should have to drive for that medicine — that's the bottom line." Spradlin said he knows cancer patients who are forced to travel up to an hour to Sacramento from Placer, Yolo, Solano, and San Joaquin counties and from Turlock, Woodland, Davis, Vacaville, Marysville, and Yuba City. "And I see that every day. I see people weeping all the time — they're so happy they can come in to a safe place and get their medicine.
"They're still thankful they can drive fifty miles to get it, but it shouldn't be like that," Spradlin continued. "We see this way too much and we fought this fight for way too long to be having such stupid conversations."
According to a 1,000-patient survey conducted by Oakland-based advocacy group Americans for Safe Access this year, one in four medical cannabis patients reported that they have driven fifty miles or more to buy pot. One out of ten said they have driven two hundred miles or more. About half of the respondents — 46 percent — reported that they have gone without cannabis at times because they couldn't buy it easily, and of those, nearly one in five — 18 percent — said they have done so for more than a month at a time.
The bans also perpetuate a sometimes-violent black market for weed. And the bans tend to deny access to the most vulnerable patients — the oldest and sickest; those who can't afford to drive forty miles to Oakland or pay $400 an ounce for clandestine delivery; and those who either lack a backyard to grow it in or the skills to grow. "For our people on fixed incomes — they're sick, they got medical bills stacked up, they're the sickest of the sick that are affected by these bans — it's just brutal," Spradlin said.
The increasing number of bans in California also comes at time when national acceptance of medical marijuana is at an all-time high of 80 percent, according to recent polls. CNN's Dr. Sanjay Gupta told me recently that he thinks medical pot products should be in every pharmacy in America.
"It hits me in the gut," Barrett said of Martinez's ban on marijuana growing. "I thought we were going forward."
In hindsight, it's no surprise that eighteen years after voters passed Proposition 215, the law's clear intent has yet to be realized. If you look at a map of California and color red all the counties that voted against Prop 215. Now color blue all the ones that voted for it, and then you get a geographically red state with a blue coastline including the population centers of the San Francisco Bay Area and greater Los Angeles as well as a finger of blue tolerance that pushes in from the Delta all the way past Sacramento to Mono and Alpine counties on the state's eastern border.
California's initiative process is unique in that voters can go over the heads of politicians, city managers, and chiefs of police to directly write the law. Fueled by San Francisco activists battling the AIDS crisis, Prop 215 created a medical defense in court against prosecution for many marijuana crimes. And it sent law enforcement officials into fits.
After Prop 15 passed, then-California Attorney General Dan Lungren assembled a conference of about three hundred cops from across the state. First, they decided to target any doctor who wrote recommendations. Physicians, as a result, had to fight in court to clarify their First Amendment right to recommend cannabis — though most are still too scared or ignorant about their rights to exercise them, said Dr. Donald Abrams, chief of Oncology and Hematology at San Francisco General Hospital.
Led by vocal opponents of Prop 215 at the California Police Chiefs Association, the California Narcotic Officers Association, and some officials within the federal government, police continue to exploit loopholes in the measure to harass patients, ex-cops say.
Patients also have had to fight in court to clarify their right to recover unlawfully confiscated pot and paraphernalia from the police. And patients had to fight for immunity from arrest, which they got with Senate Bill 420 in 2003. The law also created a state medical pot ID card, as well as the right to associate to collectively cultivate and distribute cannabis.
The legislation led to the first dispensaries in bastions of reform like Oakland and Berkeley. But red areas of the state dug in their heels. The City of San Diego, for example, had to be taken to court and forced to issue the ID cards called for under SB 420 — and some counties still won't issue them.
Meanwhile, the rest of the country moved on. In 2009, the Obama administration issued the so-called Ogden Memo, a legal opinion that was widely viewed at the time as marking the beginning of the end of the war on medical pot. Amid the worst recession since the Great Depression, the memo spurred a marijuana dispensary-boom across California. Pot became one of the few promising industries in the state during the Great Recession. And police fumed.
In 2010, the state appeared to be ready to legalize pot for all adults. But then the nation's top cop, US Attorney General Eric Holder, flew to the Golden State to denounce Proposition 19. The measure's 52-48 lead in the polls quickly evaporated, and it lost on Election Day 46 percent to 54.
Police and illegal drug cartel leaders cheered, and, in 2011, a second White House memo clarified that all commercial medical marijuana activity was fair game for police action. The so-called Cole Memo emboldened local chiefs and led to the launch of a joint federal-state medical pot crackdown. US attorneys threatened thousands of landlords with property forfeiture as raids swept the state. Thousands of dispensaries closed. San Diego's dispensary count went from more than two hundred to zero; Sacramento County went from more than one hundred to zero.
"There was like one-two punches coming at the industry for the last three years," Spradlin said.
Cities, counties, and federal prosecutors played whack-a-mole with clubs through 2012 and into 2013, forcing them to close, reopen elsewhere, and close again. Then the disastrous California Supreme Court ruling came down.
In the case of City of Riverside v. Inland Empire Patient's Health and Wellness Center, Inc., et al., the high court reviewed a series of appellate court decisions concerning the right of cities to ban dispensaries. The court found that patients had no lawful right to access pot — under the law they only had a shield from being prosecuted in court. "It represented a devastating defeat for patients," said Kris Hermes, spokesperson for Americans for Safe Access. "It entrenched the patchwork system."
"I'm still stunned. I think it's lunacy," said 59-year-old Ojai resident Risa Horowitz, who has to commute ninety miles to the nearest dispensary to treat chronic back pain. She had her first back surgery in her twenties. "It's a burden," she said, adding that she believes the California Supreme Court has abandoned the citizens of the state. "I think it's barbaric and criminal of our elected officials to perpetuate that cannabis is an illegal plant.
"Can you imagine if cities banned pharmacies?" she continued. "That's essentially what they are saying. It just happens to be a natural pharmacy."
After the high court's ruling, cities with bans on the books doubled down on enforcement, and holdout clubs in ban towns shut their doors and went to delivery-only.
But Riverside did more than just affirm a city's right to ban pot shops. It left open the possibility of also banning collectives, as well as personal cultivation.
One of the first locales to ban all cultivation of medical cannabis was Live Oak, an unincorporated area of Sutter County, north of Sacramento. In December 2011, Live Oak prohibited all medical pot growing within its boundaries.
So patient James Maral sued on behalf of himself and as a trustee of the collective Live Oak Patients, Caregivers and Supporters Association, along with other individuals, on the grounds that Live Oak's law violated Prop 215 and SB 420. A lower court ruled in favor of Live Oak, so Maral appealed to Third District Court of Appeals in Sacramento, which then last year also upheld the lower court ruling, citing the Supreme Court's decision in Riverside.
On January 3, 2014, San Francisco attorney Joe Elford appealed to the California Supreme Court to review the Live Oak decision, but the California Supreme Court declined to take up the case in a split 4-3 decision.
According to a 2013 analysis by California NORML, at least 29 jurisdictions have outdoor growing bans, and total cultivation bans are spreading in their wake. The cities of Selma, Tracy, Avenal, Beaumont, and California City have banned all growing — as have the city and county of Fresno. Earlier this month, Sacramento County banned outdoor pot growing, while and the City of Colusa banned all marijuana cultivation.
Similar bans are pending in Elk Grove, Porterville, Lodi, and the East Bay cities of Fremont and San Pablo.
"It's all because of the cops," said Swerdlow, the Riverside nurse. "They are winning. And we are losing."
The pain started for Gary Harris way before he saw dead bodies and survived rocket attacks in Vietnam. "My dad used to —." The 61-year-old Fresno resident paused as the memories overwhelmed him. "He was an alcoholic."
Born at Edwards Air Force Base in 1952, Harris grew up in the hot, unforgiving desert town of Lancaster trying to dodge his dad's rage and violence. "He created quite a bit of trauma," Harris said. "I'd say that's where most of my trauma comes from."
At the age of seventeen, Harris got out of the desert and joined the Army. He drove trucks and forklifts, and then got shipped off to Vietnam for a year.
"At the time the stuff is going on, you just kind of blew it off — you see dead people lying around; you have rockets raining down from the sky; you just kind of deal with it," he said of being in the war. "You don't think in terms of being traumatized — but I have nightmares."
Harris is single: never married and no kids. "My longest relationship was like three months — nothing serious, ever," he said. "I've always been kind of a rambling man."
After Vietnam, Harris lived in San Jose, then moved back to Lancaster before going to Sacramento and then Miami. He then relocated to Phoenix, then back to California, then to Arkansas, and Florida.
He suffered his first grand mal seizure in 1985 while visiting a friend in Virginia. He was driving at the time and rolled his van, breaking three bones in his back. The injury later developed into rheumatoid arthritis and spread to other parts of his body, ultimately disabling him.
Harris had first tried pot in 1965 and has self-medicated for what he now realizes is post-traumatic stress disorder since 1970. Occasionally he would stop, and in 1991 he went as long as a year and half without smoking weed. During those times, his nightmares would become increasingly vivid. "I had this nightmare that blew my mind. People, uh — ssssss," he hissed through a grimace. He couldn't find the words. "It was like my subconscious mind didn't realize it was just a dream. Somebody was being murdered and I am going 'Ah. Ah. Ah.' I started smoking pot again and it pretty much alleviated the nightmares.
"It made me normal — like the way I was supposed to feel," he continued. "I don't know how to say it like someone else could understand."
Being able to sleep helped him focus. He worked as a cable TV installer, and then worked in industrial electronics in Florida for seventeen years before becoming disabled by the rheumatoid arthritis.
Harris moved back to California for good in 2005, partly because Florida was so humid, and because "there is no safety net [there] whatsoever," he said. "California was my home and I had been wanting to come back for many years. When I was disabled there was nothing [in Florida] for me anymore, plus the marijuana laws [in California] were a big influence. I knew if I got caught it was a felony in Florida. And I knew I would have no problem getting a recommendation for medical marijuana [in California] because of my condition."
He picked Fresno because he didn't want to move back to Lancaster, and it was in the center of the state. He got a recommendation almost as soon as he moved in.
In 2005, there were two doctors in Fresno who would recommend cannabis, and Harris has been a patient with one of them ever since. He also goes to a VA hospital for his primary care, and said staffers there don't give him a hard time about being a cannabis patient. "They accept it as part of my medication."
Harris takes pills for epilepsy, stomach, prostate, and arthritis problems. His bones are brittle and he's broken three in his back since 2005. He has a prescription for morphine and the narcotic painkiller Percocet — the opiate oxycodone mixed with acetaminophen.
"That stuff wipes me out," he said of Percocet. "I take that stuff and I'm like a vegetable. I'm literally a vegetable. I only take that stuff if [the pain is] really out of control. For the most part I use marijuana and that seems to keep me happy. I'm not using marijuana to get high. If I wanted to get high I'd just load up on my morphine and my Percocet. Those are some of the most popular drugs out there."
After he got his recommendation for medical pot, Harris' first source was the Fresno black market. Dispensaries have never been tolerated there. "When I moved here, I moved into a house and was renting a room, and another guy had just gotten out of prison. He knew people in the black market. So I started buying it from a Mexican national.
"They could barely speak English, but they were really nice guys and they gave me good deals and some of the stuff they had was at least as good, if not better than what could be found in dispensaries. You could buy cheap, good marijuana that didn't have the taste and flavor and the bouquet, but it would do the job. It was still high in THC and CBD," he added, referring to the two main active molecules in cannabis.
Harris began growing his own two years later in 2007, but stayed in touch with his black-market connections for help when he needed it. First, he started growing in his closet with some clones from a now-defunct dispensary in Tulare. The crop failed, so he got some seeds. He didn't know he was supposed to grow only females, and so the males pollinated the females, ruining the medicinal quality of the bud, but yielding hundreds more seeds. "So I kept the seeds and have been using seed ever since."
Harris moved to a different rental place in Fresno at which the landlady was okay with him growing a small garden, he said. His first outdoor crop was pretty rough, but he got better. In 2008, he grew enough that he didn't need to grow in 2009. In 2010 he grew fourteen, ten-foot-tall plants in the drained pool in the backyard, yielding nine pounds of weed — vastly more than he needed for the year — all at a total cost of $350.
Last year, he messed up his soil and harvested just four plants from a screened enclosure on the side of his rental. But he helped a neighbor with her six-plant garden, so he has enough supplies to last for many more months, he said.
About this time of year, Harris should be prepping his small, fenced-off plot of land for his annual marijuana crop. But this year, he's reluctant. He recently learned that the City of Fresno had passed a total ban on all cultivation — outdoors or inside. Violators will be fined $1,000 per plant. One women is fighting a $30,000 fine for 30 plants.
Harris was one of a dozen people who spoke out against the proposed total ban at a Fresno City Council hearing on March 20. "I think it's an injustice to the people who find comfort and relief from marijuana," he said. "The only effect the bans will have is on the people who are doing it legally. There are a lot of people who don't worry about prosecution and they're going to continue."
If he can't grow his own, he's going to call up his black market contacts and start buying again, he said. "Now I'm going to have to spend $5,000 a year to get my medicine, my marijuana? The fact that they banned it isn't going to make it go away. It forces people to spend money they don't have and give it to people who don't need it.
"I'm giving it to the Mexican mafia, instead of Home Depot and Wal-Mart," he continued, referring to the gardening supplies he typically buys at those stores. "That's $5,000 going south and then multiply that by however many patients that are going to have to start buying it."
Cal NORML estimates that there are about one million medical cannabis patients in the state.
"It's strange: the city and [county] board would place the Mexican mafia above the Americans who want to produce their own medicine," Harris said. "I don't know how they can get away with this but I guess they can."
The stark reality is that local bans are the modern face of what is now called "marijuana legalization." Colorado's Amendment 64, which legalized pot for adult recreational use in that state, also allows towns to ban cannabis stores. The law itself also prohibits outdoor cultivation. Consequently, the majority of cities in Colorado have banned pot stores and all growing is done indoors. Any adult over 21 can grow up to six plants.
Washington's Initiative 502, which legalized marijuana for adult recreational use in that state, also allows towns to ban stores and completely bans home-growing. The legislature has proposed sharply curtailing medical marijuana patients' rights to cultivation there as well.
Both versions of medical marijuana regulations proposed in Sacramento this year also affirm "local control" — which is code for the right to ban, activists say. And several of the legalization proposals floated for the 2014 ballot included the local control provision.
Dry counties for pot, in other words, appear to be here to stay.