Earlier this week, U.S. District Court Judge Barry Ted Moskowitz denied a defense
for James Stacy, a San Diego-area medical marijuana provider raided in September 2009 by the Drug Enforcement Administration (DEA), just one month before the Department of Justice (DOJ) issued a new policy
concerning medical marijuana enforcement. Tell your Member of Congress
to support important legislation that would permit Truth in Trials!
[caption id="" align="aligncenter" width="432" caption="James Stacy with San Diego ASA "]
Despite the DOJ's new policy, medical marijuana patients and providers in states that have adopted medical marijuana laws are still vulnerable
to federal arrest and prosecution. Worse yet, these patients and providers are denied the opportunity present evidence during federal court proceedings that might demonstrate medical need and/or compliance with state and local laws.
The denial of medical marijuana defenses in federal court has attracted the attention of some Members of Congress who are working to end this unfair practice. "Despite a new Justice Department policy on medical marijuana enforcement, James Stacy was still denied a defense in federal court," said Congressman Sam Farr (D-CA)
, author of HR3939, the Truth in Trials Act
, legislation that would allow defendants like Stacy to use evidence of state law compliance in federal court. "The Truth in Trials Act would correct this aberration of justice and ensure that no one else will needlessly face years in prison without the means to defend themselves."
Now is the time for change! Please urge your Member of Congress
to support this
very important legislation.
Two California Senate committees approved a bill this week that will require a 600-foot buffer zone between medical cannabis collectives and schools statewide. AB 2650
was approved by the Senate Health Committee and the Local Government Committee over the objection of Americans for Safe Access (ASA) and other medical cannabis advocates. However, ASA and allies can claim a victory in the bills march towards final approval by the Senate. The initial draft would have required a 1,000-foot buffer zone around a laundry list of sensitive uses. Pressure from the medical cannabis community forced the author, Assemblymember Joan Buchanan (D-Alamo), to retreat to the less onerous provision.
AB 2650 is expected to win final approval in the Senate this session. Cities and counties can adopt smaller buffer zones before January 1, 2011, when the new legislation takes effect. Local governemnt retains the right to adopt larger buffer zones at any time. The bill is sponsored by the Peace Officers Research Association of California (PORAC), a law enforcement lobbyist group that opposes medical cannabis.
Los Angeles City Attorney Carmen Trutanich was one of more than sixty people who gathered last night for a candlelight vigil for the victims of two violent attacks at medical cannabis collectives this week. Two people were killed and one was seriously injured in two separate incidents
on Thursday. The tragedies occurred in the midst of ongoing controversy about the city’s tough new medical cannabis ordinance.
Trutanich told a reporter from West Coast Cannabis Magazine
that he understood this was “not something [the victims] brought on themselves,” and said the police department would not rest until the murderers were brought to justice. Trutanich’s words are reassuring for patients and the victims’ loved ones, who fear this human tragedy may be politicized by medical cannabis opponents in the often emotional debate about regulating safe access in Los Angeles. Fear of crime around medical cannabis facilities fueled efforts to adopt the state’s toughest medical cannabis ordinance earlier this year, but Los Angeles Police Chief Charlie Beck told City Councilmembers and the media that reports of increased crime around collectives did not bear out
Unfortunately, Thursday’s tragedies differ little from similar crimes that occur at convenience stores, gas stations, or grocery stores in Los Angeles. These murders are not medical cannabis crimes. Trutanich is correct to keep the blame on the perpetrators, instead of the victims. His presence at last night’s vigil and sensible comments speak volumes to patients and advocates, most of whom take issue with his adversarial posture towards medical cannabis.
Americans for Safe Access (ASA) would like to commend the City Attorney on his presence, and extend our heart-felt sympathies to the families of the victims. We call on the Los Angeles Police Department and City Council to do everything in their power to bring the murderers to justice, and ask that anyone who can help in their arrest or prosecution cooperate fully in that effort.
Update June 23 - Sen. Calderon has withdrawn SBX6 16. Thanks to everyone who helped get this done!
California Senator Ron Calderon
(D-Montebello) wants to add a new tax medical cannabis in California. If adopted, SBX6 16
would tax legal medicine at the same rate as tobacco – forty one percent! ASA opposes this unreasonable burden on legal patients, who already pay sales tax on their medicine. Medical cannabis is expensive and usually not covered by insurance. ASA is calling on Senator Calderon’s colleagues on the Senate Revenue and Taxation Committee
to reject SBX6 16 at a hearing on Wednesday, June 23.
ASA appreciates the state’s need for additional tax revenue during these tough economic times. A more reasonable approach would be to seek wider compliance with the Board of Equalization (BOE) ruling
from October of 2005, which requires patients’ collectives and cooperatives to pay sales tax at the normal rate. This could bring large sums of money into state coffers without creating additional economic hardships for sick and dying Californians who lawfully use medical cannabis.
(ASA opposes the application of sales tax to medical cannabis, but supports compliance with the BOE ruling until the law changes.)
conducted by ASA shows that regulating medical cannabis is beneficial for communities, and revenue issues should be a part of a comprehensive regulatory strategy. However, SBX6 16 is a premature effort. Revenue issues must be addressed along with other crucial issues – (1) inconsistencies in local policies on sales of cannabis, (2) clarity on the scope and nature of conduct permitted under the law, (3) licensing and legal protection for cannabis growers, and (4) protection for patients’ civil rights. ASA is willing to work with lawmakers on sensible and comprehensive legislation in the future.
Please join ASA in opposing SBX6 16 before Wednesday’s hearing. You can contact members of the Senate Revenue and Taxation Committee
from the committee web page. Tell them to vote no on SBX6 16.
A troubling trend of excessive bails in medical marijuana cases has begun to occur over the past month. The operators of a long-standing Santa Barbara dispensary, currently held on $1 million bail each
, are the latest victims of this unprovoked attack on medical marijuana providers. On Friday, the Santa Barbara Police Department and Sheriff’s Department raided
HortiPharm, a medical marijuana dispensary operated by Joshua and Dayli Braun. Police also raided a restaurant owned by Dayli Braun, and several other locations, seizing large amounts of medical marijuana and growing equipment, and arresting a total of 7 people. According to reports received today by Americans for Safe Access, the District Attorney has issued a warrant for HortiPharm’s bookkeeper and also intends to hold him on $1 million bail.
Less than three weeks ago, on May 26th, a San Fernando Valley dispensary operator was held on $1 million bail after Sheriffs from Los Angeles and Ventura raided two of his distribution facilities and Ventura County home.
Needless to say, holding people on $1 million bail is rare and typically reserved for people accused of seriously violent acts, not for those simply providing medicine to patients. In theory, we are supposed to be protected from unreasonable bail under the Eighth Amendment to the U.S. Constitution. Arguably, the excessive bails
we are seeing in recent medical marijuana cases are a violation of those rights. The Santa Barbara District Attorney’s office claims that HortiPharm violated the terms of the Compassionate Use Act, but has failed to provide any evidence. And, do such claims even justify holding people on million dollar bails?
Two recent acquittals
of dispensary operators by jury trial in San Diego have shown that criminal prosecution may not be the best way to address the issue of medical marijuana distribution. Local officials in Santa Barbara, Los Angeles, Ventura and elsewhere would do better to approach alleged local or state law violations with civil, not criminal, actions. Keeping people needlessly locked up using excessive bail is not the right approach for a public health issue like medical marijuana.
Stooping 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.
This 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.
Today the ASA office spent the better part of the afternoon responding to what's become the same old song and dance from the Drug Enforcement Administration. We confirmed two simultaneous raids by DEA agents on L.A. medical cannabis dispensaries this afternoon, though we had word that there may have been as many as four. I myself spent the afternoon on the phone with people who were very angry, people who were devastated; defeated, and people who were genuinely terrified that the federal agents would come to their homes tomorrow, knock on their doors, put handcuffs on their wrists, and take them away for the rest of their lives.
For 8 years under the Bush Administration, DEA had developed a policy to reconcile the difference between the federal laws they enforce and those passed by voters and state legislatures in California and 12 other states. The policy? Opportunity.
They knew that state laws allowed people to grow and provide cannabis to others who were qualified to use it to treat an illness, cure a disease, calm a sideeffect of a treatment like chemotherapy or vicious anti-viral medications, or ease the pain at the end of their lives. They knew that the state law allowed people to come together to provide this plant to those who needed it, that they would do so publicly, and that it would leave them open to being treated like our country's worst drug king-pins - under federal law anyway. They would work with city governments, advertise to the community for those who needed it, in good faith help patients who wanted to get cannabis from a safe place rather than on the street from a drug dealer. And they would do all of it out of a clearly marked building; number in the phone book, address on the internet, open and available for those who needed it.
For the DEA it was like shooting fish in a bucket.
No investigations, no real work, all they had to do is show up, break down the door, smash all the glass, destroy the security cameras of those who would willingly let them in if they asked, point semi-automatic machine guns at men, women, and children when they came to their homes... throw them to the ground, knee on the back, boot on the neck, and take all the medicine in open display cases that had been grown by regular people protected by their state laws to do just that. Some would laugh on the way out. Some would leave tasteless and vicious notes like, "All Hippies Die" for the workers to find as they rummaged through what was left of their property.
Then they would bring charges, take them to court, and not allow a word in front of a federal jury about the laws with which they complied, they mayor who came to visit the collective, the business association that saw them as valued members of the community, the scores and hundreds of people struggling through cancer, HIV, terrible pain, mental illnesses, and various other afflictions for which doctors across the state had said that - yes indeed, cannabis could probably help.
And then these people were sent to prison. Where they sit today.
This is what the Bush Administration directed its DEA Administrators Karen Tandy and Michelle Leonhart to do to American citizens. Here in the United States of America, this is the reality we live everyday.
I don't know what the Obama Administration will do. I don't know if he'll stop the raids, as he said he would on the campaign trail and after the election, or if he'll allow them to go on... and we'll be asked by the Democrats in power to just, well... bare with him a little while longer. After all, he doesn't want to spend the "political capital" on our issue just yet, but he supports us deep down. He'll come to bat for us when we really need it.
Well we need it. We need it now, and we need it today. I understand the give and take of politics. I understand that sometimes "now is not the right time". And I know that our struggle feels like it can't blow the most important chance for basic protections we've had in over 30 years. I even understand "means and ends". I understand all that. But I also know that when it comes down to Charles, Adele, Mickey, Dan, Dustin... politicians make a choice. And if that choice is "political capital", then there are people who are going to suffer and suffer bad. And they had better believe that.
I don't know what our President will do. My heart is desperate to trust him; but I think its desperate to trust any politician who gives a nod that he or she might recognize the vast evidence of the profound medical breakthroughs in this plant. After all its been now almost 40 years since the plant was placed in the fateful "Schedule I: No Medical Value". I don't know what he'll do, but I do know one thing: this plant has got a long and bright future of exciting medical discoveries ahead of it. And as the science continues to come out, there is going to be a lot of shame to go around and a lot of people who don't want to own up to the suffering they helped cause. But I for one am not going to easily forget the ones who stood by and let this happen. I won't be spiteful, but I will remember.
And I also know that if President Obama does help us, it will not be because we deserved it, but because we demanded it.
Call his comment line during office hours (M-F, 9am-5pm) and tell him how you feel: (202) 456-1111
And while you're at it, call the new Attorney General, Eric Holder, too: (202) 353-1555
Here's a script or speak from the heart:
"Hi, my name is ___________. The DEA just raided multiple L.A. medical cannabis dispensaries, despite President Obama's pledge to end federal threats, intimidation, and interference in states that have medical cannabis laws. This needs to STOP! Please understand that we're suffering and living in fear of our own DEA. Please help us and stop these raids."
Please be respectful on the phone and know that you're speaking to volunteers, but if you do feel a little angry... I will understand.
1. Thanks to Activist Opposition, LA Planning Committee Puts Off Dispensary Vote
This 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 Regulations
The 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 Limits
The 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.
US Olympic swimmer Michael Phelps, who won eight gold medals in the Beijing games last year, was photographed smoking cannabis
at a college party in November. He issued the standard apology after a picture of him holding a water pipe surfaced in the tabloids this week, telling the Associated Press he engaged in “regrettable” behavior and “demonstrated bad judgment." Time will tell if the incident will have any effect of Phelps’ career or his lucrative endorsement contracts.
So why is cannabis use by a 23-year old athlete considered newsworthy? Phelps is a public figure, of course, and tabloids need to manufacture controversy in order to sell copies and ads. But setting aside the shortcomings sensational media, there is still a great public ambivalence about using cannabis. Parents and pundits will wring their hands in the op-ed pages worrying what message Phelps’ transgression sends to children.
Medical cannabis advocates would do well to take note of the brief public controversy surrounding this photograph. 80% of Americans support medical cannabis, but that does not mean they are comfortable with its use – especially when they see it publicly or in their neighborhood. As the state of California moves closer and closer to full implementation of its medical cannabis laws, neighbors and local representatives are encountering the issue of medical cannabis use in very up close and personal ways – loved ones are getting recommendations, dispensaries are opening nearby, and advertising for medical cannabis is increasingly commonplace.
Most Americans have some experience with cannabis use, theirs or a loved one, and not all of those experiences are good. Much of that baggage will come up as we continue to engage this issue in neighborhood councils
, City Councils, and other local forums – in California and other medical cannabis states. Advocates for medical cannabis should not underestimate this concern in the neighborhoods as we push for implementation, especially for local regulations for medical cannabis dispensaries. The seeds of a backlash lie in this ambivalence, and the consequences can be severe – even late in the process.