Blog Voices from the Frontlines
Calaveras Sheriff Brazenly Engages in Identity Theft to Entrap Medical Marijuana Provider - Americans for Safe AccessStooping to a new low, local law enforcement in California has resorted to identity theft in order to entrap, arrest and prosecute law-abiding medical marijuana providers. The Calaveras County Sheriff’s Department has admitted to using the physician’s recommendation and identity of legal medical marijuana patient Robert Shaffer in order to entrap and arrest Jay Smith, operator of the local “K Care Alternative Collective” dispensary. The Sheriff’s Department was in possession of Shaffer’s documentation as a result of an unrelated arrest. Despite complying with state law by refusing to sell Deputy Sheriff Steve Avila any medical marijuana before verifying the recommendation that he fraudulently used, Smith is still being prosecuted for felony marijuana sales and transportation. Surprisingly, at a recent hearing, Calaveras County Superior Court Judge Douglas Mewhinney overlooked Smith’s compliance with the law and said there was sufficient evidence for the case to proceed to trial. Shaffer’s physician, Dr. Philip A. Denney of Carmichael, verified that Shaffer was indeed a patient when K Care contacted Dr. Denney’s office after Deputy Avila deceptively used Shaffer’s valid medical marijuana recommendation. Dr. Denney, upset that his patient, Robert Shaffer, did not authorize such use of his medical records, told The Record that the investigation against Smith “smacks of entrapment and sleaziness.”
Dr. Philip Denney: The prosecution of Smith “smacks of entrapment and sleaziness.”Calaveras Sheriff Dennis Downum defended the actions of Deputy Avila, but seemed confused about the letter of the law. In an appearance before the Calaveras Board of Supervisors, Sheriff Downum claimed erroneously that, “to provide medical marijuana to someone, there has to be a caregiver relationship.” In fact, if Sheriff Downum had brushed up on the law, he would have realized that for Smith to be in compliance with state law, he must operate as a collective or cooperative, not as a “caregiver.” While Sheriff Downum has no excuse to be ignorant of the law he’s upheld to enforce, Calaveras District Attorney Jeff Tuttle has no excuse to falsely prosecute Smith based on the same flawed interpretation of state law. In an interview with the Calaveras Enterprise, Tuttle echoed Sheriff Downum and said that his “understanding of the law is that…you have to be a primary caregiver to provide [patients] with marijuana.” In response to accusations of impropriety, District Attorney Tuttle said:
Law enforcement officers and investigations are allowed to do many things that as citizens we would be penalized criminally for, but the reason they are is that they are doing it as part of an investigation. They can mislead people, they can lie they can try to trick people.Smith’s attorney, Ean Vizzi, called Tuttle’s assertions “absolutely incorrect,” not knowing whether Tuttle was just “mistaken or [if] he’s purposefully ignoring the law.” Sheriff Downum and Distriact Attorney Tuttle should not be let off the hook so easily. At best, they have seriously misinterpreted California’s medical marijuana law, and at worst the Sheriff could be responsible for “investigatorial misconduct” against Smith and Shaffer. If it’s determined that the Sheriff’s Department has violated any ethical or legal standards by assuming Shaffer’s identity to entrap Smith, the case against Smith should be promptly dismissed and Sheriff Downum should have to face the legal consequences.
VICS Constitutional Challenge of Health Canada Medical Cannabis Program Successful! - Americans for Safe AccessThis post was written by Philippe Lucas, founder & executive director of the Vancouver Island Compassion Society (VICS), founder of Canadians for Safe Access, and member of ASA's Medical and Scientific Advisory Board. It is with great pleasure that I announce the successful outcome of the Vancouver Island Compassion Society (VICS) Constitutional challenge of Health Canada's medical cannabis program and practice. On Monday, February 2nd 2009 Justice Koenigsberg ruled that the federal regulations limiting the number of people who could grow cannabis in one location, and the rules limiting the number of patients that a producer could grow for were arbitrary, served no public interest, and were therefore unconstitutional. She stayed her decision for one year in order to allow the federal government to amend their medical cannabis regulations to reflect her ruling. Although Justice Koenigsberg went on to find the defendant, Mr. Mat Beren - who was in charge of the Vancouver Island Compassion Society's production and research facility - guilty of cannabis possession and cultivation for the purpose of trafficking, she then immediately granted him an absolute discharge, essentially exonerating him of all charges. In granting Mr. Beren the discharge, the judge stated that "In my view, it would be contrary to public interest for Mr. Beren to have criminal record. If ever there was a case where an absolute discharge is appropriate, it's this one." She also urged Health Canada to establish regulations that would legally authorize organizations like the Vancouver Island Compassion Society that are legitimately helping medical cannabis patients through research and distribution to continue their good work without the ongoing threat of arrest and prosecution. This important legal decision came about as result of a nearly five year Charter challenge which stemmed from a 2004 police raid on the Vancouver Island Therapeutic Cannabis Research Institute (VITCRI), a cannabis production, research and breeding facility owned and operated by the Vancouver Island Compassion Society. The judge has yet to issue a written decision, and we will make it available as soon as it becomes available. This marks the fifth time that this program has been found unconstitutional since 2001, and although it is a major victory for Canadian medical cannabis patients and those working to help them, the decision didn't address and remedy ongoing access problems. Judge Koenigsberg noted that Health Canada has only granted legal access to medical cannabis to about 2600 people so far, despite there being between 400,000 and 1 million medical cannabis patients in Canada, but failed to find the access regulations unconstitutional. However, as a result of her ruling patients will be able to benefit from the economies of scale in regards to the production of their medicine, and experienced cultivators will have more freedom and motivation to assist authorized patients. The VICS and its 850 members would like to thank our amazing legal team for this historic victory. Lawyers Kirk Tousaw and John Conroy QC both worked tirelessly on this challenge at greatly reduced legal rates, and they deserve much of the credit for this win. We'd also like to thank our lay and expert witnesses, who gave so much of themselves and whose testimony formed the foundation for Justice Koenigsberg's historic decision. Lastly, a huge thanks to our supporters in both Canada and the U.S., particularly the Marijuana Policy Project, Robert Field, and the Drug Policy Alliance, without whose financial support this challenge would not have been possible.
1. Thanks to Activist Opposition, LA Planning Committee Puts Off Dispensary VoteThis week, the Los Angeles City Council's Planning Committee delayed a decision on a new medical cannabis ordinance that would have regulated dispensing collectives operating in city limits. The draft ordinance would have created a number of new restrictions, including requiring each member of a dispensing collective to provide their personal information to the LA City Clerk's office. It would have regulated security systems, and required dispensing collectives to store cannabis in a locked vault or safe, and would also have prohibited the sale of edible cannabis products. Concern expressed by advocates, patients, and Councilman Dennis Zine, who said that the new regulations would end up shutting down many of the city's currently operating dispensing collectives. Major criticisms were voiced with the regulation process, as the proposed ordinance was not disclosed to the community until just hours before the meeting. In addition, the city attorney's office did not included a single one of the suggestions put forward by the patients and activists who participated in a working group for more than a year. It was these considerations that contributed to the council's decision to delay action on the regulations. Pay close attention to this issue if you live in the LA area, as it has critical implications for the future of LA dispensaries. For more information, visit ASA's site to read the AG Guidelines, as well as ASA's report on what they mean for dispensing collectives.
2. San Francisco Supervisors to Consider New RegulationsThe San Francisco Board of Supervisors passed a proposal brought forth by SF Mayor Gavin Newsom that enacted regulations requiring operators of medical cannabis dispensing collectives to hand over financial records, to keep detailed information of members, and tighten the requirements for operating as nonprofit or not-for-profit establishments. Newsom's proposal to tighten dispensary restrictions comes on the back of guidelines released by California Attorney General Jerry Brown, intended to inform law enforcement and the suggested best practices of the dispensing collectives. Although Newsom claimed his proposal seeks to protect clinics from DEA raids, federal authorities have shown little rhyme or reason in their selection of dispensaries. ASA finds increasing evidence that local law enforcement often plays a leading role in calling in federal agents to raid collectives who are compliant, in an attempt to circumvent local laws. The ordinance requiring dispensing collectives to keep membership records came on the heels of an abandoned proposal that would have had medical cannabis clinics keep a list of names and address of patient members. The keeping of personal information ignited outrage among advocates. Newsom's proposal offers specific requirements in dispensing collectives which operate "not for profit" and, when requested by city health officials, provide financial records. Nine medical dispensaries have received city permits to operate and 14 others are going through the permitting process, according to the Department of Public Health.
3. Fort Bragg Enacts New Cultivation LimitsThe Fort Bragg City Council voted unanimously this week on an ordinance to restrict medical cannabis cultivation. The ordinance, which has been in the works since July of last year, prohibits outdoor growing, making medical grade cannabis growth cost prohibitive to those low income patients who cannot afford expensive indoor lighting and growing systems. It also limits indoor grows to 50 square feet or 250 cubic feet per residential unit, though permits costing about $600 would be required to increase that amount to 100 square feet or a maximum of 500 cubic feet. The ordinance also requires a special permit for cultivation in multi-family units, and prohibits growing medical cannabis for money and cultivating near schools or parks. In addition, cultivation will be allowed only in certain zones; particularly suburban residential, low density residential and medium density residential zoning districts. A permit would be required to grow in city and high-density districts. Noncompliance with the ordinance could result in a maximum fine of $1,000 and up to six months in jail. Fort Bragg does not recognize collectives and cooperatives as a legal entities, which is one reason that advocates have expressed concern that the regulations are in violation of California's Compassionate Use Act. At the end of the hearing, council members included language that stating the city does not intend to conflict with the federal controlled substances act or the Compassionate Use Act, though it may certainly do the latter.
1. Days After Obama is sworn in, DEA Exploits Transition; Raids Dispensary
The Drug Enforcement Administration (DEA) raided a medical cannabis dispensary Thursday in South Lake Tahoe in the first days of the new Obama Administration. Even though President Obama had made repeated promises during his election campaign to end federal interference in medical cannabis states, many high-ranking Bush Administration officials have yet to leave office. For example, still at the helm of the DEA is acting Administrator Michele Leonhart, who has been responsible for numerous federal raids in California, following in the footsteps of her predecessor, Karen Tandy. Neither Eric Holder, President Obama's pick for U.S. Attorney General, nor a new DEA Administrator, have taken office yet.
"We are very concerned about the DEA’s raid on a legal medical cannabis providers during this transitional period in the Department of Justice. It is no secret that President Obama has made numerous public statements condemning this policy" said Caren Woodson, ASA's Director of Government Affairs. "We are hopeful that Obama will move quickly to, at a minimum, suspend such actions until his Administration has a chance to further look into the matter."
No arrests were made at Holistic Solutions in South Lake Tahoe, though medical cannabis and cash were seized. Since George Bush took office in 2000 Federal agents raided hundreds of sanctioned California dispensaries, as well as the Washington State offices of an advocacy group that was supplying starter plants to authorized patients. In Oregon, DEA used a federal grand jury to try to obtain the private medical records of 17 patients, an effort that was later rejected by a federal court, and even threatened New Mexico state officials with federal prosecution if they moved to implement the state's medical cannabis distribution program.
"I would not have the Justice Department prosecuting and raiding medical marijuana users," Senator Obama said in an August 2007 statement. "It's not a good use of our resources.". This statement was followed up by Obama in other public events in the run up to the election.
"President Obama must rise to the occasion by suspending all federal interference and by keeping the promise he made to the voters of this country," said Woodson. ASA has been working with the new Administration on changing federal law around medical cannabis, which has included a comprehensive set of policy recommendations.
In another last minute affront to patients, the Bush Administration last week rejected recommendations from its own DEA Administrative Law Judge to expand medical cannabis research, stating it is "in the public interest." The federal government currently prohibits scientists from cultivating cannabis for research, which has a stifling effect on developing the full medical potential of the cannabis plant. "The DEA and the National Institute on Drug Abuse (NIDA) coordinate the obstruction o meaningful research on medical cannabis, and instead prioritize studying its harmful effects," said Woodson. "Obama has the opportunity here to step in and discontinue a policy that hinders the development of a medicine that benefits hundreds of thousands of people in the U.S."
2. Montana Seeks to Revoke Rights of Patients who Drive, Allow Nurses to Recommend
Two separate bills are being considered by the Montana Legislature this year, each would move the states medical cannabis law in an opposite direction.
Montana House Bill 73 would revise existing state law to allow physician assistants and nurse practitioners the authority to prescribe medical cannabis. Currently, only physicians are authorized to do so. The bill's lead sponsor, State Representative Julie French (D-Scobey), framed the issue as one of equality, and one that would help Montanans who live in rural areas and are often only able to see an physicians assistant, rather than a doctor. View the bill here .
However, another bill has also been introduced that would require police to take blood samples from every medical cannabis patient stopped at a traffic encounter. If the samples show traces of THC above an certain amount, the police would revoke a patients' right to use medical cannabis. Tom Daubert, president and founder of Patients and Families United (an ASA Affiliate), addressed the Montana Senate Judiciary Committee on Tuesday, saying he supports to goal of reducing impaired driving on public highways but that the bill propsed by Kalispell Republican Sen. Verdell Jackson is offensive and unconstitutionally targets one class of patients. Opponents also argue that the blood concentration limits of THC set forth in the bill are arbitrarily low and would make it almost impossible for any qualified patient to legally drive.
State Senator Rebecca Sturdevan, a proponent of the measure, said that she acknowledges the medical benefits of cannabis but that she doesn't believe patients should be able to use their needed medicine if they are caught driving after using it.
Montana passed its state law in 2004 with 62% in favor.
3. New Mexico Nurse Sues to Recommend Cannabis
Albuquerque psychiatric nurse practitioner Bryan Krumm has filed suit against the federal government, saying he's afraid he'll be raided by the Drug Enforcement Administration if he recommends medical cannabis, as he's legally entitled to do under New Mexico law . The DEA has long undermined state medical cannabis laws, using a variety of tactics. In New Mexico, DEA has actually threatened state officials with prosecution if they carry out the laws passed by their state legislature.
Recently, New Mexico's health department finalized rules for non-profit organizations to grow and dispense medical cannabis to qualified patients, becoming the first state in the US to officially permit such establishments at the state level.
Krumm hopes the lawsuit will convince the courts to change the classification of cannabis to recognize its medical value - which federal agencies deny to this day despite 13 states that remove penalties for its use and almost 35 which recognize its medical use in some way (though patients may not be protected). He said he would recommend cannabis to patients, but hasn't due to fears that the federal agencies such as DEA and DoJ will intervene. He claims he hasn't been able to follow his ethical responsibilities as a nurse practitioner by referring his patients into the medical cannabis program, because the patients would be in jeopardy of federal charges.
4. Medical Cannabis Protections Proposed in Minnesota, Missouri
In the past week, both the Minnesota and Missouri legislatures introduced attempts to provide basic legal protections for patients who rely on medical cannabis as treatment.
The Minnesota State Senate introduced SF 97, which would allow qualified patients to possess only 2.5 ounces of cannabis, but they would be required to register with the state. The Senate passed a similar bill last year that was killed in the State House of Representatives. The proposed law would allow for state-regulated nonprofits to dispense cannabis, but would also create harsh penalties for patients and nonprofits that dispense cannabis to individuals that aren't included in the state registry.
Minnesota Governor Tim Pawlenty has said he will veto the bill if its opposed by law enforcement, according to the Minnesota Independent .
This week, Missouri lawmakers introduced a medical cannabis bill for consideration this session as well, joining other Midwestern states and on the heels of Michigan's November initiative, passed by almost 64% of Michigan voters. Representative Kay Meiners of Kansas City filed House Bill 277.
In November, Michigan became the first state in the Midwest to create patient protections, and the 13th state in the US.
To read the Minnesota bill, visit: http://www.senate.leg.state.mn.us/bills/billinf.php?ls=86
Read the Missouri bill in its entirety here: http://www.house.mo.gov/billtracking/bills091/bills/hb277.htm
1. San Deigo and San Bernardino Appeal ID Cards to US Supreme CourtAfter three consecutive losses in court, San Diego and San Bernardino Counties sent yet another petition to the US Supreme Court, asking to quit their state-mandated obligation to provide ID cards through their county health departments to legitimate medical cannabis patients, the goal being to protect them from wrongful arrest, and to make the distinction between recreational and medical use easier on police. The original lawsuit filed by the two counties in 2006 asserted that they were under no obligation to abide by California law by providing the ID's, since it differed from federal law. The case was argued against by ASA's Chief Counsel Joe Elford and struck down once at the trial courts, sent to the Appeals Court and struck down again, and then appealed to the California Supreme Court, which refused to review the case after considering the San Diego and San Bernardino position to be nonsensical. In every medical cannabis court ruling ever issued, including ones that were generally bad for patients, courts have always asserted that state medical cannabis laws can exist and operate along with federal laws. And yet the Southern California counties have continued to spend taxpayer dollars to fight this overwhelmingly consistent legal precedent. Now they've done it again, appealing to the United States Supreme Court for review. ASA has been campaigning to implement the County ID card program since SB 420 was passed by the California Assembly in 2003. We've seen legal success with the initial suit, success of our chapters in pushing for county implementation, we compelled counties to implement the program by threatening legal action to those who don't comply, and most recently filed suit against Solano County for not doing so.
2. Sacramento Begins Issuing ID CardsWhile San Diego and San Bernardino appeal to the US Supreme Court to avoid giving ID cards to patients who need them, Sacramento, a former hold-out county that has seen the light (due to threats of litigation from ASA) opened the application process for the ID cards on January 12th. Applications are accepted by appointment only with Sacramento County Vital Records. Appointments will be from 9 a.m. to 4 p.m. on Wednesdays and Fridays. Application forms are available on the Sacramento County Public Health Department's Web site at www.SCPH.com or through the Sacramento County Vital Records office: 7001 East Parkway, Suite 650. To request an application via mail, call (916) 875-2066.
3. Rosenthal Trial UnderwayOn Wednesday, renown medical cannabis activist Ed Rosenthal went to Appeals Court for oral arguments in his "reconviction" for charges for which he was originally convicted, and sentenced to one day in prison - time already served, in 2003. During arguments, Rosenthal's attorneys argued that he was not allowed to present an adequate defense because the judge refused to allow any evidence or hear testimony from individuals that Rosenthal had been deputized by the City of Oakland to grow medical cannabis in compliance with California's medical cannabis laws, and thus was protected from federal prosecution. Since 2000 when George Bush took office, the federal government has been interfering in state medical cannabis laws by arresting and prosecuting individuals who faithfully and legally execute those laws. During court proceedings federal judges keep the jury from knowing anything about the laws. The defendant, in this case Rosenthal, is presented to the jury as an ordinary large scale illegal drug dealer - even when elected officials, police, and other administrators and government officials give permission for and sanction the growing of medical cannabis in compliance with the law. Federal agents arrested Rosenthal in 2002, and a federal jury convicted him in 2003 of three counts of marijuana cultivation and conspiracy, though most jurors renounced the verdict upon learning that presiding Judge had disallowed evidence that Rosenthal grew the cannabis as a deputized Oakland official. The 9th Circuit Court overturned Rosenthal's convictions in April 2006, after discovering that a juror had engaged in misconduct by asking a lawyer friend whether jurors could ignore evidence and vote their conscience ("jury nullification"). Federal prosecutors re-indicted Rosenthal in 2006 on the same charges plus nine more, but the nine charges were dismissed in 2007 after the judge found that prosecutors had engaged in "vindictive prosecution". Rosenthal was re-convicted on May 30, 2007 despite the fact that could not be punished, as he had already served his sentence for the same charges. This is the appeal for his second conviction for the same offense.
4. Yucca Valley Council Extends MoratoriumOn Thursday, the Yucca Valley Town Council approved extending a 45-day moratorium on new medical cannabis dispensaries or its distribution at existing businesses an extra 10 months and 15 days. City staff are expected to study the dispensaries and submit their findings to the Planning Commission in February or March, and to have a second reading of a dispensary ordinance ready by June at the latest. Opposition to dispensaries was vocal at the meetings, and so community members supportive of medical cannabis action should take necessary steps to organize vocal support for the dispensaries.