Pages tagged "legal"

  • California Appellate Court Creates Contradictory Law on Federal Preemption of Medical Marijuana Dispensaries



     

     

     

     

     

     

    The California Court of Appeal for the Second Appellate District issued an opinion yesterday in Pack v. City of Long Beach, a case involving a medical marijuana dispensary ordinance adopted last year by the Long Beach City Council. The court did not invalidate the ordinance in its entirety, but instead found that federal law preempted certain provisions of the city’s permitting scheme. In particular, the court found that the provisions of the ordinance granting permits to dispensaries through a lottery system at a significant, recurring fee, are preempted by federal law.

    Notably, the court made a distinction between a permitting or licensing scheme and an ordinance that would merely protect such facilities against local civil or criminal prosecution. This leaves open the possibility that Long Beach could comply with the court’s decision simply by making semantic changes to its ordinance, requiring “registration” rather than “permits” or “licenses.”

    The Long Beach decision expressly disagrees with two published decisions on federal preemption by the Court of Appeal for the Fourth Appellate District, one in County of San Diego v. San Diego NORML and another in Qualified Patients Association v. City of Anaheim. Because of this appellate conflict, the Long Beach decision is not binding on trial courts outside of the Second Appellate District. Sadly, this ruling creates more uncertainty about localized medical marijuana distribution, instead of resolving it.

    Americans for Safe Access (ASA) argued against federal preemption in the Long Beach case by filing an amicus ‘friend of the court’ brief in June with the American Civil Liberties Union (ACLU) and the Drug Policy Alliance (DPA). Unfortunately, the court disregarded those arguments and chose to throw a wrench into the implementation of California’s medical marijuana law.

    ASA will, in all certainty, file a request for depublication of the Long Beach decision, which is not yet final. There is a possibility that the California Supreme Court will grant review of the decision or depublish it, especially since it is our belief that the court applied an incorrect preemption analysis.
  • ATF is Latest in Long Line of Federal Agencies to Bully Medical Marijuana Patients



     

     

     

     

     

     

    Two weeks ago, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), under the Obama Justice Department, issued a memorandum instructing firearms dealers not to sell to lawful medical marijuana patients. The ATF memo -- an affront to patients’ Second Amendment rights to be sure -- was just the latest in a long list of policy statements and threatening letters from the federal government aimed at undermining the rights of medical marijuana patients. However, this particular effort against gun owners has people riled up more than usual.

    After finding out about the ATF memo, Montana’s congressional delegation -- Rep. Denny Rehberg (R-MT), and U.S. Senators Max Baucus (D-MT) and Jon Tester (D-MT) -- blasted the decision. In response, Tester wrote a letter to the ATF last week, urging the agency to “immediately reconsider [its] misguided effort.” Rep. Rehberg and Senator Baucus made similar condemning remarks.

    In defense of patients, Senator Tester wrote:

    It is unacceptable that law-abiding citizens would be stripped of their Second Amendment rights simply because they hold a state-issued card authorizing the possession and use of marijuana for medicinal purposes.

    In Michigan, the ATF is being especially proactive. Americans for Safe Access has received reports that the federal government is using information obtained from the state’s medical marijuana program to serve search warrants and forfeiture notices on patients with legally possessed firearms.

    The ATF memo comes after the Department of Housing and Urban Development (HUD) issued a notice to state and local housing authorities that accommodation need not be given to legal medical marijuana patients and that eviction from public housing was an acceptable option.

    Also earlier this year, the Federal Deposit Insurance Corporation (FDIC) issued an order, increasing the enforcement responsibilities of banks to ensure against criminal and illicit activity. This order has been used to deny or cancel banking services for countless legally operating medical marijuana dispensaries across the country. According to a Denver Post editorial from today:

    [L]ast week, the lone bank in the state that openly worked with the [medical marijuana] industry closed an estimated 300 marijuana-related accounts for fear that the companies  are breaking federal law.

    In a now-famous move, the Obama Justice Department sent out a series of letters this summer to public officials in at least 10 medical marijuana states, threatening criminal prosecution for implementing public health laws. This had a deleterious effect on several local and state laws in Arizona, California, Montana, Rhode Island and Washington to name a few.

    More recently, however, the Internal Revenue Service (IRS) ruled that Harborside Health Center -- possibly the largest licensed medical marijuana distribution facility in California -- could not deduct its operating costs and must pay taxes on gross income. Besides the possibility of putting Harborside out of business, this could have a devastating effect on local distribution across the country.

    The ATF memo and other examples of intolerance by the federal government illustrate the need for a federal policy that treats medical marijuana as a public health issue. As such, urge President Obama to develop a comprehensive policy on medical marijuana. Also, people should urge their Member of Congress to pass HR 1983 to reclassify medical marijuana, HR 1984 to restore banking services for the medical marijuana community, and HR 1985 to allow dispensaries to deduct their operating expenses when paying federal taxes.
  • Long-banned Alar (Daminozide) Shows Up on Hydroponic Store Shelves Before Being Removed Again



     

     

     

     

    In 1988, DEA Administrative Law Judge Francis Young ruled that, “Marijuana, in its natural form, is one of the safest therapeutically active substances known to man.” And, although the DEA ignored Judge Young’s recommendation to reclassify the plant from its federal status as a dangerous drug with no medical value, smoking cannabis remains relatively benign with little-to-no side effects.

    That said, it’s important to understand certain safety consequences with regard to cultivating cannabis, especially in light of its increased commercialization in medical marijuana states. As an example, in May the States of California and Oregon removed from the retail hydroponic market several popular flowering additives after the California Department of Food and Agriculture (CDFA) found them to contain high levels of long-banned Daminozide (Alar), a known “probable” human carcinogen.

    A subsequent Freedom of Information Act request yielded the concentrations of Daminozide in products such as Flower Dragon, Phosphoload, and Top Load. Two other products quarantined in the CDFA sweep, Emerald Triangle Bushmaster and Gravity, were found to contain Paclobutrazol, which has been listed by the World Health Organization (WHO) as moderately hazardous and banned for use in many European countries.

    According to G. Low, author of Integral Hydroponics and the one who filed the recent FOIA request, “In field situations, Paclobutrazol has a half-life ranging from 3 to12 months, but could persist as long as 3 years.” G. Low added that:
    Both Paclobutrazol and Daminozide are systemic products with long withholding periods, meaning that it is likely to remain residual in harvested produce when used to cultivate a short-term deciduous crop (i.e. cannabis). What these toxins do under combustion when ingested into the lungs is a completely unknown factor. However, the Material Safety Data Sheet for Paclobutrazol states that when it’s heated to decomposition it emits toxic fumes.

    Daminozide was banned in the U.S. in 1989 for use on any consumable crop. Calling Alar a “potent human carcinogen” at the time, 60 Minutes ran a program that exposed the widespread use of Alar by U.S. apple growers.

    So how did known carcinogens find their way back onto the market?

    In each instance, these popular products were marketed to cultivators as containing organic actives (e.g. “kelp”, “rare earth elements”, “citrates”, “humatic isolates,” etc.) and sold in retail hydroponic stores throughout the U.S.

    So that patients do not unwittingly become pawns in an increasingly commercial market driven by quantity and efficiency, as opposed to safety, the patient community must demand responsible cultivation methods, limiting the use of harmful pesticides, herbicides and other toxic adulterants.
  • Setting Precedent for Patients and Providers in San Luis Obispo County



     

     

     

     

     

     

     

     

     

     

     

    Earlier this month, two medical marijuana patients were acquitted of all charges in a case that is likely to affect numerous other similar pending cases. Deip Paul and Steven Brown were found “not guilty” of several felonies after only two hours of jury deliberation. The September 7th verdict finished off a two-week trial, which Superior Court Judge John Trice called:
    [a]n historic ruling for San Luis Obispo County, the first of its kind I believe, that I'm sure will have a large repercussions on currently ongoing trials.

    This victory for patients should be taken in context. Although the California coastal county of San Luis Obispo (SLO) is known for its vineyards, rolling hills, and the serenity of the Pacific Ocean, over the years law enforcement has been terrorizing the medical marijuana patient community.

    With the case of Charles C. Lynch, law enforcement attempted to scare and intimidate county medical marijuana patients and providers by federally prosecuting Lynch for operating his Morro Bay dispensary, despite city approval and business community support. The SLO Sheriff and federal Drug Enforcement Administration (DEA) raided Lynch in 2007.

    Then in 2009, the San Luis Obispo Narcotics Task Force (NTF) started an investigation of Paul, a Cal Poly student who suffers from debilitating migraines, after he reported a burglary to the police. In February 2009, NTF officers followed Paul who was meeting with his medical marijuana provider. The two were arrested and charged with possession, possession with intent to sell, transportation, and conspiracy to sell marijuana. A third defendant, Cory Wolin, faced similar charges, but took a plea deal by testifying against his friend Paul.

    While Paul and Brown were getting prosecuted, NTF Commander Rodney John led a series of criminal enforcement actions in December 2010 against patients and their providers, mainly the operators of delivery services, which were spurred by the hostility against storefront medical marijuana dispensaries in the county. These raids resulted in several arrests and subsequent prosecutions.

    Once the case finally made it to trial more than two years later, the jury weighed whether Paul and Brown were within their rights as qualified patients to engage in an exchange of money for medical marijuana, and if the amount of marijuana and money involved were “reasonable” under the law. The courtroom was packed with supporters during the trial; the strong solidarity was evident.

    Despite Commander John’s testimony in the Paul/Brown trial, his evidence failed to convince the jury. This does not bode well for John’s other nine cases that are winding their way through the SLO Superior Court. The New Times reported this week that, “District Attorney Gerald Shea may have to consider differently which cases to pursue.” A motion to dismiss several of the cases was scheduled to be heard today.

    Paul and Brown are now seeking the return of their wrongfully seized property, still in police custody.
  • Indictments Thrown Out by Nevada Judge, Who Said the State’s Medical Marijuana Law “Makes No Sense”



     

     

     

     

     

     

     

     

     

    A Nevada trial court judge threw out an indictment Monday against Leonard Schwingdorf and Nathan Hamilton, two medical marijuana dispensary operators arrested in federal Drug Enforcement Administration (DEA) and local law enforcement raids on several Las Vegas facilities last year. This was the first legal disposition since the Obama DEA raided at least 5 area dispensaries on September 8, 2010, indicting 15 people as a result.

    When dismissing the indictments, Nevada District Judge Donald Mosley called the state’s law “mind boggling.” Judge Mosley further questioned the legislature’s failure to craft a law that benefits patients:
    [W]hy don't they (the Legislature) make up their mind if they want to make it legal or not…I can't make any sense out of this law.

    Judge Mosley also asked about the law:
    Are people supposed to give it away? I mean it just makes no sense.

    Although all 15 indictments stemming from last year’s raids were initially filed in federal court, only 7 remain as federal cases. The rest of the indictments, two of which were tossed earlier this week by Judge Mosley, were transferred to state court.

    According to the Las Vegas Review-Journal, defendants have called the state law “paradoxical because it allows patients registered with the state to possess the herb, but makes it illegal to obtain it.”

    Mosley agreed with defense attorneys in their allegations that prosecutors withheld important medical-related information from the grand jury that indicted Schwingdorf and Hamilton.

    Seven federal prosecutions are still pending as are another state case, which will be heard Friday by District Judge Doug Smith. An indictment against multiple operators and the vagueness of Nevada’s medical marijuana law will again be at issue this Friday.
  • Tennessee Congressman Calls Federal Medical Marijuana Policy “Misguided”



    Congressman Steve Cohen (D-TN) wrote a letter to Drug Czar Gil Kerlikowske on Monday, urging a change to the country’s drug policy with regard to marijuana. In addition to calling the federal policy on medical marijuana “misguided,” Cohen said, “Marijuana does not belong on Schedule I of the Controlled Substances Act.”
    There is no evidence that marijuana has the same addictive qualities or damaging consequences as these harder drugs and it should not be treated as such.

    Cohen, who has taken FBI Director Robert Mueller to task over the federal government’s policy, called for compassion in his letter to Kerlikowske:
    We should not deny the thousands of Americans who rely on marijuana to treat the effects of AIDS, cancer, glaucoma, multiple sclerosis, and other illnesses the benefits that marijuana provides.

    Cohen also described a personal experience he had with medical marijuana:
    I have personally witnessed a close friend who was suffering in the last days of pancreatic cancer benefit tremendously from smoking marijuana. It increased his appetite, eased his pain, and allowed him to smile. It allowed him to deal with death with a little more dignity.

    Fortunately, there is a bill currently in Congress that would reclassify medical marijuana. Americans for Safe Access (ASA) is mobilizing people to urge their Members of Congress to pass HR 1983, a bill that would reclassify marijuana to Schedule III and allow states to pass their own laws.

    ASA has also taken the Obama Administration to court over its refusal to reclassify marijuana. After a 2002 petition filed by the Coalition for Rescheduling Cannabis (CRC) was denied earlier this year, ASA and the CRC filed an appeal in the D.C. Circuit. Advocates are hopeful that either Congress or the courts will push the federal government to address medical marijuana with a sensible public health policy.
  • Michigan Appellate Court Severely Limits Access to Medical Marijuana, Lansing Mayor Blasts Decision



     

     

     

     

     

     

     

    On Tuesday, Michigan’s Court of Appeals ruled in People v. Compassionate Apothecary that the sale of medical marijuana was illegal under state law, outlawing an important method of distribution relied on by thousands of Michigan patients. According to the City Pulse, Lansing Mayor Virg Bernero blasted the ruling today as “a terrible setback” and “ridiculous law,” claiming that the judges “subverted the will of the people rather than facilitated it.” Lansing and other cities in Michigan have already adopted regulations licensing the same distribution facilities just banned by the appellate court.

    Since voters passed the Michigan Medical Marihuana Act in 2008, patients have been struggling to find safe and legal ways to access their medication. Several cities including Ann Arbor, Lansing, Traverse City and Ypsilanti had forged ahead, adopting ordinances regulating local distribution so that legal protection would exist for patients and providers. But Tuesday’s decision undermines those local laws and an estimated 400 dispensaries that were operating across the state, generally without incident.

    Mayor Bernero called the decision a victory for the War-on-drugs approach, “which will help keep marijuana sales in the neighborhoods and back alleys.” Statistics show that the vast majority of patients rely on centralized distribution centers for their medication, mainly because it is difficult and expensive to grow indoors. In the face of this demand for safe access by the state’s most vulnerable residents, Michigan has shown a deplorable lack of compassion and foresight. Because this legal prohibition on distribution will push patients into the illicit market, it will increase the risk of harm to patients and in so doing will directly contradict the efforts of law enforcement.

    Advocates applaud the leadership of local officials like Mayor Bernero, yet more are needed to stand up for the rights of patients to safely and legally obtain their medication. In looking ahead, Mayor Bernero put the ball in the state legislature’s court:
    The way forward is simple -- our state lawmakers need to step up to the plate and write a law that is clear and concise and that respects the will of the people of Michigan as expressed in their overwhelming support for the use of marijuana for medicinal purposes.

    Advocates are currently working to develop a response. The tens of thousands of Michigan patients who rely on local distribution will not stand idly by while their rights are taken away. Whether through the courts, the legislature or by referendum, patients will seek a remedy to gain safe and legal access to medical marijuana.
  • Trial Court Denies Challenge to Anaheim Ban on Dispensaries for a Second Time



     

     

     

     

     

     

     

     

    In an anticipated trial ruling in Qualified Patients Association v. City of Anaheim, Judge Chafee denied a challenge to Anaheim’s ban on medical marijuana dispensaries after he was reversed by the Fourth Appellate District one year ago. In this week’s unpublished decision, which has no precedential value, Judge Chafee decided that the Medical Marijuana Program Act (“MMPA”) does not forbid a city from banning “mass distribution” of medical marijuana through storefront dispensaries. However, under the MMPA qualified patients and their primary caregivers are not subject to criminal sanctions for sales where they associate collectively or cooperatively to cultivate marijuana for medical use.

    The trial court’s emphasis on “mass distribution” has no basis in the law and is contradicted by the State Attorney General Guidelines, which interpret the MMPA as permitting storefront medical marijuana distribution facilities. When the Fourth Appellate District reversed Judge Chafee in 2010, the court held that state law was not preempted by federal law and that federal law could not be used as a means to ban local distribution, but ultimately sent the case back to Judge Chafee for further factual development. The case is expected to be appealed, leaving open the possibility of another reversal.

    Americans for Safe Access filed an amicus brief on behalf of Qualified Patients Association in 2010 and will likely be involved in the second appeal.
  • It's About Time



     

     

     

     

     

     

     

     

     

    After nine years of delay, the DEA finally denied the Coalition for Rescheduling Cannabis (CRC) petition to reschedule marijuana.  While this may superficially seem like a setback, it now allows us to get a more fair hearing in federal court.  We even had to to file a lawsuit in federal court to compel any action on this decision, so it is a step in the right direction that we received a final administrative action on the rescheduling petition to set the stage for a court battle.  Now, we can present our evidence to a tribunal that will listen.

    Already, Time posted an article concluding that science demonstrates the following:
    if an appeals judgment were based on scientific evidence, rather than political considerations this time around, it's easy to imagine a very different outcome.

    Similarly, the International Business Report posted an article entiled, "Did U.S Government Miss the Mark with Medical Marijuana Ruling?"  You can guess the answer (or click on the link for the result).  The short of it is that we are getting a chance in court and we need to make the most of it.  And we will.
  • Celebrating Independence Day with an Unhealthy Dependence on the Federal Government



     

     

     

     

     

     

     

     

     

    More by a confluence of circumstances than by design, the federal government made clear this past week its intolerance to medical cannabis as well as its intolerance to the independence of local and state governments to decide their own public health policies. The irony of the U.S. Department of Justice issuing formal threats against the autonomy of local and state officials on the eve of Independence Day is not lost on many who are paying attention to this latest power grab by the federal government.

    When was the last time you remember local and state officials being threatened en masse with criminal prosecution by the federal government for implementing their own public health laws? This egregious attempt by the fed to seize unwarranted authority over the states should be a concern not only to the medical cannabis patient community, but also to those who believe in the importance of local autonomy in a federalist system of democracy.

    There are, however, historical demons in our states’ rights closet too, not the least of which is the amalgam of state laws enacted to resist federal desegregation efforts during the Civil Rights era. However, there must be ways to protect people from harm and bigotry using our federalist system of government, without ceding omnipotence to the fed and giving up the rights of states and their localities to care for the health and welfare of their people. There is no doubt that the fed is attempting to set a precedent that will allow them to usurp control from local and state governments and inhibit their ability to pass their own public health laws.

    This is a time to rise up in opposition to the federal government and its abuse of authority. This is not a time to cower and buckle to intimidation. The States of Arizona, California, Montana, New Jersey, Rhode Island and Washington have either suspended or gutted parts of their medical cannabis programs in response to threats from U.S. Attorneys.  However, the State of Delaware recently passed the country’s 16th medical cannabis law, including the licensing of distribution centers, despite awareness by the legislature and Governor Jack Markell that the new law contradicted parts of federal law. Vermont Governor Peter Shumlin signed a bill to regulate and license medical cannabis distribution centers in his state despite a threatening letter sent by U.S. Attorney Tristram Coffin to Vermont’s Public Safety Commissioner.

    If local and state officials want to maintain their independence, they must take a cue from the States of Delaware and Vermont and stand up to the federal government. Governors, state attorneys general, legislators, county supervisors, city council members and others must join together and fight back against this latest encroachment.

    To be sure, medical cannabis patients are not going away. If the federal government refuses to recognize the therapeutic benefits of cannabis and develop a sensible public health policy, then states must be allowed to do so in its place. As we celebrate our freedom from government tyranny on this July 4th, let’s also be resolute in our stand against tyrannical acts by the Obama Administration.