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Medical Marijuana Update

Lots of action -- good, bad, and ugly -- in California this week, plus a Washington appeals court ruling that appears to clear the way for dispensaries. Let's get to it:

California

Last Tuesday, Humboldt County supervisors extended a moratorium on new dispensaries. The extension was the second one and lasts for one year. The county began the moratorium last December after the federal government began threatening local governments with legal action over medical marijuana-related ordinances.

Last Wednesday, an appeals court ruled a Rancho Mirage dispensary must shut down until the city's efforts to close it are resolved. Rancho Mirage Safe Access Wellness Center must close while the city's appeal of a Riverside County Superior Court judge's ruling allowing it to stay open is under consideration by Division Two of the Fourth District Court of Appeals, the court said, granting a request from the city.

Also last Wednesday, Palm Springs police put un-permitted dispensaries on notice that they must shut down or face fines that begin at $1,000 and rise to $5,000 for each week they remain open. Palm Springs is the only Coachella Valley city to permit the sale of medical marijuana, but it limits the number of available licenses to three. There are about 10 collectives in Palm Springs without a city permit. The city and the un-permitted collectives have battled with competing lawsuits, and no end is in sight.

Also last Wednesday, an appeals court held that medical marijuana use alone is not sufficient cause for removing a child, reversing a trial court order that the father undergo drug testing and parenting courses because of his medical marijuana use. The court found that, "Although father uses medical marijuana pursuant to a physician's recommendation, there is nothing in the record to indicate that he has a substance abuse problem." Accusing a parent of child abuse or neglect merely for using medical marijuana "without any evidence that such usage has caused serious physical harm or illness or places a child at substantial risk of incurring physical harm or illness is unwarranted and will be reversed," the court said.

Last Friday, Los Angeles activists handed in 70,000 voter signatures for a referendum that would regulate but not ban dispensaries in the city. "The Medical Marijuana Regulation and Control Act" is supported by Americans for Safe Access and a local committee and is a response to the city council's effort to ban all dispensaries. If the city fails to regulate the dispensaries, the referendum will be waiting.

On Monday, a new Murrieta dispensary was served notice of the city's moratorium on dispensaries. Diamond Star Remedies opened despite being denied a business license, and its operator, John Szwec, said he had plans to pave his lot and put up a permanent building as soon as the city is willing "to stop harassing and start following state laws." Murrieta city council voted in September to extend its moratorium for one year while it awaits a state Supreme Court decision on whether cities have the power to regulate medical marijuana dispensaries in their jurisdictions.

On Tuesday, Yuba County supervisors approved a progressive grow ordinance. The ordinance allows up to 18 plants to be grown on parcels of less than an acre, while up to 99 plants may be grown on parcels greater than 20 acres. The ordinance eliminates a misdemeanor provision for violators and instead allows penalties and gives the county the authority to remove marijuana that doesn't follow growing guidelines.

Also on Tuesday, the city of Concord moved closer to banning outdoor grows. The move comes after the council heard complaints about offensive odors from residential grows and the risk of robbery or theft. The city council voted unanimously to review the city of Moraga's ordinance and possibly follow the Moraga model, which bars outdoor cultivation and demands that indoor grows be hidden from view.

Also on Tuesday, Pittsburg city planners recommended a ban on dispensaries. Planning commissioners approved the ban on a 4-1 vote, with a final vote before the city council set for January 22. The city has had a two-year moratorium on dispensaries, which expires in April, while staff studied whether to permanently ban them.

Also on Tuesday, Mendocino County supervisors hired a San Francisco attorney to deal with the federal government's subpoena of the county's medical marijuana records. Supervisors announced after a closed-door meeting with county counsel that the board "has retained the legal services of William Osterhoudt of San Francisco to assist the county in representation regarding the subpoenas." The subpoenas from the US Attorney Office for Northern California seek "any and all records" for the county's medical marijuana cultivation ordinance from January 1, 2010 to the present, including those with third-party garden inspectors and Mendocino County Board of Supervisors. The county quit issuing permits under its program in March, when federal prosecutors threatened to file an injunction against the county's medical marijuana cultivation ordinance and seek legal action against county officials who supported it. The county has until January 8 to respond to the records request.

Also on Tuesday, Sonoma County supervisors rejected repealing the county's outdoor grow guidelines. The guidelines, in place since 2006, allow patients or caregivers to grow up to 30 plants in up to 100 square feet of space. Repeal would have meant reversion to the "state minimum" of six plants, but was voted down 5-0. Supervisors did agree to consider a proposal to ban the use of unoccupied residential buildings for grows and to establish a working group that would help the county shape its medical marijuana program.

Colorado

Last Friday, the state agency in charge of regulating dispensaries announced it is preparing a broad rewrite of the rules. The Department of Revenue's Medical Marijuana Enforcement Division, or MMED, said it will release a draft of the rewritten rules by December 28. The draft rules will be the subject of three public hearings beginning in January. "Based on industry feedback, and its own experience, the MMED has determined that the majority of the existing medical marijuana rules... are in need of amendment," MMED said.

Maine

On Monday, a state representative said he would introduce a bill to eliminate the categories that limit when medical marijuana can be authorized by a doctor. The proposed legislation would also allow any physicians to recommend medical marijuana, not just a few licensed to do so. Rep. Mark Dion (D-Portland) said he would submit the bill next month.

Montana

Last Thursday, a judge pushed back the trial date for medical marijuana provider and former University of Montana quarterback Jason Washington. He is accused of violating federal drug laws in a case arising from the federal crackdown on medical marijuana in Montana in early 2011. Washington and prosecutors now have a court date of January 14 and a January 3 deadline to reach a plea agreement. If that doesn't happen, Washington will become only the second medical marijuana provider in the state to stand trial. The other, Chris Williams, was convicted and is looking at up to 80 years. Five of Washington's co-defendants have already cut plea deals.

Washington

On Tuesday, an appeals court overturned the conviction of a Spokane dispensary operator. Scott Shupe opened the first dispensary in Spokane, only to be charged with and convicted of marijuana trafficking under state law. But the Division III Court of Appeals threw out the conviction, saying that Spokane Police did not have probable cause to search Shupe’s residence and business and that Spokane County prosecutors did not have sufficient evidence to justify Shupe’s convictions. But the opinion went further, and appears to have agreed with Shupe and that the law allows providers to sell marijuana to one person at a time rather than the state’s interpretation of providers selling only to one person, period.

Marijuana Is Now Legal in Colorado! [FEATURE]

And then there were two. On Monday, December 10, 2012, Colorado Gov. John Hickenlooper signed an executive order certifying last month's Amendment 64 victory and legalizing the use, possession, and limited cultivation of marijuana by adults 21 and over.

Colorado now joins Washington as states where voters approved marijuana legalization last month and where the will of the voters has now become law. In both states, it is only the possession (and cultivation in Colorado) parts of the new laws that are now in effect. Officials in Denver and Olympia have a matter of some months to craft and enact regulatory schemes for commercial marijuana cultivation and distribution -- provided the federal government does not seek to block them from doing so.

While the federal government may seek to block implementation of regulations, it cannot make the two states recriminalize marijuana possession. And the states have no obligation to enforce federal marijuana laws.

In both states, however, it remains illegal to sell marijuana or cultivate it commercially pending the enactment of regulatory schemes. Still, pot possession is now legal in Washington and Colorado.

"Voters were loud and clear on Election Day," Hickenlooper wrote. "We will begin working immediately with the General Assembly and state agencies to implement Amendment 64."

In addition to the executive order certifying the election results, Hickenlooper also signed an executive order establishing a 24-person task force charged with coming up with a way to implement Amendment 64's taxation and regulation provisions. The task force consists of government officials and other stakeholders, including representatives of medical marijuana patients, producers, and non-medical consumers, and will make recommendations to the legislature on how to establish a commercial marijuana market.

"All stakeholders share an interest in creating efficient and effective regulations that provide for the responsible development of the new marijuana laws," the executive order said. "As such, there is a need to create a task force through which we can coordinate and create a regulatory structure that promotes the health and safety of the people of Colorado."

Issues that will be addressed include: the need to amend current state and local laws regarding the possession, sale, distribution or transfer of marijuana and marijuana products to conform them to Amendment 64's decriminalization provisions; the need for new regulations for such things as security requirements for marijuana establishments and for labeling requirements; education regarding long-term health effects of marijuana use and harmful effects of marijuana use by those under the age of 18; and the impact of Amendment 64 on employers and employees and the Colorado economy.

The task force will also work to reconcile Colorado and federal laws such that the new laws and regulations do not subject Colorado state and local governments and state and local government employees to prosecution by the federal government.

"Task force members are charged with finding practical and pragmatic solutions to the challenges of implementing Amendment 64 while at all times respecting the diverse perspectives that each member will bring to the work of the task force," the executive order emphasized. "The task force shall respect the will of the voters of Colorado and shall not engage in a debate of the merits of marijuana legalization or Amendment 64."

Marijuana legalization supporters cheered the issuance of the executive orders.

"This is a truly historic day. From this day forward, adults in Colorado will no longer be punished for the simple use and possession of marijuana. We applaud Gov. Hickenlooper for issuing this declaration in a timely fashion, so that adult possession arrests end across the state immediately," said Mason Tvert, one of the two official proponents for Amendment 64 and newly appointed communications director for the Marijuana Policy Project.

"We look forward to working with the governor's office and many other stakeholders on the implementation of Amendment 64," Tvert continued. "We are certain that this will be a successful endeavor, and Colorado will become a model for other states to follow."

Not everyone was as thrilled as Tvert. Both US Attorney for Colorado John Walsh and Colorado State Patrol James Wolfinbarger issued statements Monday warning respectively that marijuana is still illegal under federal law and that driving while impaired by marijuana is still a crime.

"The Department of Justice is reviewing the legalization initiatives recently passed in Colorado and Washington state," Walsh said in his statement. "The Department's responsibility to enforce the Controlled Substances Act remains unchanged. Neither states nor the executive branch can nullify a statute passed by Congress. In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance. Regardless of any changes in state law, including the change that will go into effect on December 10th in Colorado, growing, selling or possessing any amount of marijuana remains illegal under federal law. Members of the public are also advised to remember that it remains against federal law to bring any amount of marijuana onto federal property, including all federal buildings, national parks and forests, military installations, and courthouses."

"The Colorado State Patrol would like to remind motorists that if you chose to consume marijuana and make the decision to drive that you are taking a huge risk," Wolfinbarger said. "Drivers must realize that if you are stopped by law enforcement officials and it is determined that your ability to operate a motor vehicle has been affected to the slightest degree by drugs or alcohol or both, you may be arrested and subjected to prosecution under Colorado's DUI/DUID laws. It is imperative that everyone takes responsibility for public safety when driving on Colorado's highways."

While the implementation of regulations for marijuana commerce in Colorado and Washington is by no means assured, the legalization of pot possession in the two states is a done deal. And with it, a huge hole has been blown through the wall of marijuana prohibition. Since the election last month, public opinion polls have shown increasing support -- and in three out of four cases, majority support -- for marijuana legalization, as well as little patience for federal interference in states that have legalized.

Marijuana prohibition may not be dead yet, but voters in Colorado and Washington have delivered a mortal blow. The clock is ticking.

Denver, CO
United States

Medical Marijuana Update

Yes, it's true: Medical marijuana dispensaries really are coming in Arizona and New Jersey, and clinics in Massachusetts. Meanwhile, Harborside wins in state court, and Mendocino County ponders a federal subpoena. There's more news, too. Let's get to it:

Arizona

On Sunday, Arizona's first legal medical marijuana dispensary opened for business. Southern Arizona Integrated Therapies in Tucson opened its doors to patients and caregivers for pre-registration. It will start actually distributing medicine later this month.

On Wednesday, a state court judge upheld the Arizona Medical Marijuana Act, ruling that it is not void under federal law and ordering Maricopa County to move forward with approving the operation of the White Mountain Health Center, which had sued after state and county officials proved recalcitrant. "The state court found that 'no one can argue' that the federal government's ability to enforce its drug laws is impaired to the slightest degree by the Arizona MMA," said ACLU of Arizona Legal Director Daniel Pochoda. "This should end the unprecedented spectacle of Maricopa County Attorney Montgomery and Arizona Attorney General Horne arguing that an Arizona state law passed by the voters is unconstitutional."

California

Last week, Harborside Health Centers won a victory in state court. An Alameda County Superior Court judge ruled that an attempt by Harborside's Oakland landlord to evict it because of threats from federal authorities was voided because the landlord could not seek relief in state court for Harborside's alleged violations of federal drug laws. "To impose the harsher remedy of declaring a lease terminated and authorizing the sheriff to evict a tenant would be to improperly enforce federal criminal law," the court wrote. The court also noted that the landlord's lease authorized Harborside "to use the premises for the exact purpose -- i.e. distributing medical marijuana -- that Plaintiff now deems 'unlawful' … Thus, at least at first blush, Plaintiff arguably contractually waived … any legal right she had" to ask the court to terminate the lease under state law for that reason." Harborside is the state's largest dispensary, with more than 108,000 patients on its rolls.

Last Wednesday, South Lake Tahoe ordered a dispensary to fix odor problems or be closed down. The Tahoe Wellness Center, the last of three dispensaries that once operated in the city, must fix its odor problems or face revocation of its operating permit, city officials said. The dispensary said the odor was related to harvest time and it was working to resolve the problem.

Last Thursday, the LA city council planning commission approved new dispensary regulations that would require most to shut down if approved. The regulations would force the estimated 600 to 800 dispensaries that opened after September 2007 to shut down, but would allow 182 dispensaries that opened before then and filed proper papers with the city to stay open. But those dispensaries would race restrictions, including operating at least 1,000 feet away from schools, prohibiting patients from using cannabis on the premises, and banning unaccompanied minors from entering.

Also last Thursday, a state appeals court upheld Riverside County's ban on dispensaries. The order from the court’s Division Two, based in Riverside, overturns an August ruling by Superior Court Judge John Vineyard. Vineyard said local government bans of the medical marijuana stores were illegal. While the ruling only addressed one store, it affected all the city's efforts to complete its ban. There are about a dozen dispensaries in the county, down from about 45 open when the ban was first put in place almost a year ago.

On Tuesday, Kern County supervisors fined a dispensary $50,000 for violating Measure G, the rule restricting where dispensaries and medical marijuana cooperatives can operate. Supervisors had fined several other dispensaries last month, but Kern County Kind Collective's landlord had sought more time to file legal action to evict it. It is the last dispensary known to supervisors that is in violation of Measure G.

Also on Tuesday, Mendocino County supervisors agreed to hire an outside attorney to deal with a federal subpoena demanding records the county keeps on its medical marijuana program. Supervisors said they were trying to ascertain what information the US Attorney's Office is interested in and that the subpoena was "extremely broad." The move came after a public hearing where attendees urged supervisors not to release personal information about people who had paid the county for permits for collectives to grow up to 99 medical marijuana plants or for zip ties for growers to show their plants were grown legally under state law. The county stopped issuing the 99-plant permits for collectives in March after the US Attorney's Office threatened to file and injunction against the county's medical marijuana cultivation ordinance and seek legal action against county officials who supported it.

Colorado

Last week, state officials reported September patient numbers. Some 107,666 people were on the medical marijuana registry in September, up 3,500 over the previous month. That was the ninth straight month that active patient numbers have grown. From June 2011 through last December the numbers kept dropping, from 128,698 mid-year to 80,558 at the end of 2011. Of the 107,666 active patients, 100,845 claim severe pain as their primary ailment.

On Tuesday, the Fort Collins city council began moving to undo its ban on dispensaries. Voters had approved the ban last year, but overturned it this year. The council was set to do preliminary votes to establish a licensing system for medical marijuana businesses, recognize them in the city code and allow by ordinance dispensaries, manufacturers of medical marijuana-infused products and cultivators. A final vote is set for December 20.

Illinois

Last week, a vote on a pending medical marijuana bill was delayed after its chief sponsor, Rep. Lou Lang (D-Skokie) decided he didn't have the votes to pass it. He said he would be working the phones to line up support for a later vote. There are also reports that a Waukegan company's lobbying may have delayed the vote. That company wants to be the only medical marijuana provider if the bill passes.

Massachusetts

On Monday, it was reported that two medical marijuana clinics will open in Cambridge and Framingham once the state's new medical marijuana law goes into effect next month. Last week, the California-based CannaMed began moving into its first Massachusetts location, in Framingham. Integr8 Massachusetts’ website says its medical marijuana recommending clinic will open in Cambridge in January.

Also on Monday, the Massachusetts Medical Society called on the state to develop clear regulations and guidelines for implementing the medical marijuana law. While the group wants medical marijuana to be used only as a last resort, this is an improvement from its earlier position, which opposed medical marijuana.

Montana

Last Tuesday, a US District Court judge throw out the indictment of an accountant for a medical marijuana provider, saying prosecutors unlawfully indicted her by using statements she made when immune from prosecution. Lisa Fleming was an accountant for Jason Washington, who ran Big Sky Health until he was arrested last year in a federal crackdown. She was accused by the feds of helping him launder money, falsifying records, and once purchasing marijuana for him. Prosecutors can re-file the charges, but it is unclear if they will do so.

New Jersey

Today, the state's first dispensary is set to open. Greenleaf Compassion Center in Montclair initially will be seeing patients by appointment only, starting Thursday morning. About 20 appointments are scheduled, and after being documented and assessed, those patients will walk away with the first legal medical marijuana sold in the state. The opening comes almost three years after the state passed its law.

Washington

On Monday, the Vancouver city council approved collective gardens, but only in certain zones of the city. Gardens must be at least 1,000 feet from schools, community centers, public parks, licensed day care facilities and other collective gardens, and they must be in areas zoned only as light or heavy industrial. The city had imposed a moratorium on collective gardens in July 2011, but that was set to expire at year's end. If the council hadn't acted, the gardens would have been allowed anywhere in the city.

First Nonviolent Drug Offender Released Under CA Prop 36

It didn't take long. Voters in California last month approved Proposition 36, which amends the state's draconian Three Strikes law to require that a third strike be a serious or violent felony, and last week, the first person to be released under the initiative walked out of prison.

Prop 36 will help reducing overcrowding in California prisons (US Supreme Court)
Kenneth Corley, 62, had been sentenced to 25 years to life in prison in 1996 after being convicted of drug possession for sale. His previous two felony "strikes" were convictions for burglary and attempted burglary. Per Prop 36, he was entitled to seek resentencing, and a San Diego judge resentenced him to 15 years and ordered him released with time served.

Thousands of inmates are doing decades in prison under the state's Three Strikes law, which until it was amended last month by voters, allowed sentences of up to life for a third felony offense even if the crime was something as trivial as drug possession or stealing a pizza.

Not all inmates eligible to seek sentence reductions under Prop 36 will get them. Judges reviewing their cases are required to decide whether releasing them would present a risk to public safety. If so, they will not get a sentence reduction. But the new law should still benefit thousands of other Three Strikes prisoners, as well as preventing people who committed trivial third felonies from being sentenced under the law.

San Diego, CA
United States

Chronicle DVD Review: Code of the West

DVD Review: Code of the West, directed by Rebecca Richman Cohen (2012, Racing Horse Films, 71 minutes)

In Code of the West, Emmy nominated filmmaker Rebecca Richman Cohen brilliantly tells the story of Montana's late medical marijuana wars. And now the film is itself part of the story; excerpts from it were played by the defense during the sentencing of Tom Daubert, a central figure in the film, and undoubtedly helped him escape the clutches of the federal Bureau of Prisons with an unanticipated sentence of five years' probation.

But we get ahead of ourselves. Montana's voter-approved medical marijuana program was small-scale and operating quietly for its first five years, but in 2009, when the Obama administration indicated it was not going to go after medical marijuana providers in states where it was legal, the scene exploded. Dispensaries blossomed across Big Sky County, and caravans crisscrossed the state signing up patients after, shall we say, sometimes less than adequate examinations by physicians.

Within two years, the backlash against medical marijuana and its excesses resulted first in a bill passed by the radical Republican legislature to totally repeal the 2004 voter initiative -- vetoed by Democratic Gov. Brian Schweitzer -- and then in a second bill that was as close to outright repeal as you could come without calling it that. Schweitzer let that one stand, effectively wiping out the state's booming industry.

Then, as the legislature was deliberating that spring, the feds struck. In a series of coordinated raids, DEA and FBI agents raided 26 Montana medical marijuana operations in one fell swoop, sending an even clearer signal that the state's medical marijuana glory days had come and gone.

Code of the West takes you behind the scenes during that contentious year at the state house, featuring interviews with medical marijuana patients and providers, state law enforcement and legislative officials, and concerned citizens convinced that medical marijuana was going to turn their children into stoners and their state into a laughing stock.

Two of the central figures in the film are long-time state house lobbyist Tom Daubert, who ran the 2004 medical marijuana initiative and later formed Montana Cannabis, one of the state's larger providers, and Daubert's partner in Montana Cannabis, Chris Williams. Both ended up being indicted on federal marijuana trafficking charges -- this came after the period covered by the film -- and while Daubert copped a plea to earn probation, Williams refused to bend, was convicted on marijuana and weapons charges (because they had shotguns at their grows) and is now facing an 80-year mandatory minimum federal prison sentence.

"Even now, the DEA could come kick our door in and arrest us all," Williams says presciently in the film.

Cohen succeeds at portraying the opposition to medical marijuana. But while Daubert may diplomatically
praise opponents' sincerity and while Cohen takes pains to portray them with a certain degree of sympathy, they don't come off well in my book. Rock-ribbed Republicans like House Speaker Mike Milburn come off as earnest culture warriors, while the conservative Billings church ladies of Safe Kids Safe Communities, the main backlash group, come off as, well, conservative church ladies.

And not only do the Republicans and the church ladies come off as mean and pinched, they lie through their teeth about medical marijuana. (Not to mention having allies who worry about marijuana demons.)

"We stand to lose a whole generation of kids to medical marijuana," declaimed Safe Kids Safe Communities' Cherrie Brady, trumpeting a favorite opposition theme that medical marijuana was leading to skyrocketing teen pot use. The numbers actually show a slight decline.

Speaker Milburn, while attempting to appear earnest and statesmanlike, was also capable of throwing Reefer Madness-style rhetorical bombs.

"Children are prostituting themselves to gain access to drugs and this problem happened because of medical marijuana," he dared say with a straight face "These people who are medicating, they're hippies and the children of hippies."

And one final example of what we're up against. When the 2011 repeal bill passed the state Senate, the Safe Kids Safe Communities ladies were overjoyed. How overjoyed?

"All of the angels are flying up to the ceiling singing hosannas for this repeal," one gushed.

Code of the West is both a civics lesson -- this is how laws get made and unmade -- and a cinematographic pleasure. Scenes of state capital hallway lobbying and floor speechifying are intercut with glorious Montana landscapes. The film is a pleasure to watch and an important intervention in a still-running battle.

While the film ends with the federal raids of spring 2011 and the legislative follies that resulted in repeal-in-all-but name, the story doesn't end there. The worries Williams and Daubert expressed in the film about possible federal prosecution after the raids were all too true. Both were indicted on marijuana cultivation and trafficking charges by the feds, and while Daubert walked away with only probation, Williams now looks likely to become another medical marijuana martyr.

Cohen knows she stopped filming in the middle of the story, and is now working on a Kickstarter campaign to raise the $30,000 she needs to do an update. And it's not just the trials. An effort to undo last year's gutting of the program failed at the polls in November, and some medical marijuana activists have now decided to quit screwing around and just go for out and out legalization. They've already filed a ballot initiative for 2014.

There's likely to be an updated version of Code of the West in a few months.  But the current version is powerful, enlightening, and beautiful. Watch it now.

MT
United States

Marijuana Legalization: What Can/Will the Feds Do? [FEATURE]

In the wake of last week's victories for marijuana legalization in Colorado and Washington, everyone is waiting to see how the federal government will respond. But early indications are that we may be waiting for awhile, and that the federal options are limited.

How will the feds respond to legalization? (justice.gov)
While the legal possession -- and in the case of Colorado, cultivation -- provisions of the respective initiatives will go into effect in a matter of weeks (December 6 in Washington and no later than January 5 in Colorado), officials in both states have about a year to come up with regulations for commercial cultivation, processing, and distribution. That means the federal government also has some time to craft its response, and it sounds like it's going to need it.

So far, the federal response has been muted. The White House has not commented, the Office of National Drug Control Policy has not commented, and the Department of Justice has limited its comments to observing that it will continue to enforce the federal Controlled Substances Act.

"My understanding is that Justice was completely taken aback by this and by the wide margin of passage," said Eric Sterling, former counsel to the House Judiciary Committee and currently the executive director of the Criminal Justice Policy Foundation. "They believed this would be a repeat of 2010, and they are really kind of astonished because they understand that this is a big thing politically and a complicated problem legally. People are writing memos, thinking about the relationship between federal and state law, doctrines of preemption, and what might be permitted under the UN Single Convention on Narcotic Drugs."

What is clear is that marijuana remains illegal under federal law. In theory an army of DEA agents could swoop down on every joint-smoker in Washington or pot-grower in Colorado and haul them off to federal court and thence to federal prison. But that would require either a huge shift in Justice Department resources or a huge increase in federal marijuana enforcement funding, or both, and neither seems likely. More likely is selective, exemplary enforcement aimed at commercial operations, said one former White House anti-drug official.

"There will be a mixture of enforcement and silence, and let's not forget that federal law continues to trump state law," said Robert Weiner, former spokesman for the Office of National Drug Control Policy (ONDCP). "The Justice Department will decide if and at what point they will enforce the law, that's a prosecutorial decision the department will make."

Weiner pointed to the federal response to medical marijuana dispensaries in California and other states as a guide, noting that the feds don't have to arrest everybody in order to put a chill on the industry.

"Not every clinic in California has been raided, but Justice has successfully made the point that federal law trumps," he said. "They will have to decide where to place their resources, but if violations of federal law become blatant and people are using state laws as an excuse to flaunt federal drug laws, then the feds will have no choice but to come in."

Less clear is what else, exactly, the federal government can do. While federal drug laws may "trump" state laws, it is not at all certain that they preempt them. Preemption has a precise legal meaning, signifying that federal law supersedes state law and that the conflicting state law is null and void.

"Opponents of these laws would love nothing more than to be able to preempt them, but there is not a viable legal theory to do that," said Alex Kreit, a constitutional law expert at the Thomas Jefferson School of Law in San Diego who co-authored an amicus brief on preemption in a now mooted California medical marijuana case. "Under the anti-commandeering principle, the federal government can't force a state to make something illegal. It can provide incentives to do so, but it can't outright force a state to criminalize marijuana."

An example of negative incentives used to force states to buckle under to federal demands is the battle over raising the drinking age in the 1980s and 1990s. In that case, Congress withheld federal highway funds from states that failed to raise the drinking age to 21. Now, all of them have complied.

Like Weiner, Kreit pointed to the record in California, where the federal government has gone up against the medical marijuana industry for more than 15 years now. The feds never tried to play the preemption card there, he noted.

"They know they can't force a state to criminalize a given behavior, which is why the federal government has never tried to push a preemption argument on these medical marijuana laws," he argued. "The federal government recognizes that's a losing battle. I would be surprised if they filed suit against Colorado or Washington saying their state laws are preempted. It would be purely a political maneuver, because they would know they would lose in court."

The federal government most certainly can enforce the Controlled Substances Act, Kreit said, but will be unlikely to be able to do so effectively.

"The Supreme Court said in Raich and in the Oakland Cannabis Buyers Club cases that the federal government has all the power in the world to enforce the Controlled Substances Act," Kreit said, "and if they wanted to interfere in that way, they could. They could wait for a retail business or manufacturer to apply for a license, and as soon as they do, they could prosecute them for conspiracy -- they wouldn't even have to wait for them to open -- or they could sue to enjoin them from opening," he explained.

"But you can only stop the dam from bursting for so long," Kreit continued. "In California, they were able to stop the dispensaries at the outset by suing OCBC and other dispensaries, and that was effective in part because there were so few targets, but at a certain point, once you've reached critical mass, the federal government doesn’t have the resources to shut down and prosecute everybody. It's like whack-a-mole. The feds have all the authority they could want to prosecute any dispensary or even any patients, but they haven't been effective in shutting down medical marijuana. They can interfere, but they can't close everybody down."

As with medical marijuana in California, so with legal marijuana in Colorado and Washington, Kreit said.

"My guess is that if the feds decided to prosecute in Colorado and Washington, it would go similarly," he opined. "At first, they could keep people from opening by going after them, either enjoining or prosecuting them, but that strategy only works so long."

"I think the career people in Justice will seek to block Colorado and Washington from carrying out the state regulatory regime of licensing cultivation and sales," Sterling predicted. "A lower court judge could look at Raich and conclude that interstate commerce is implicated and that the issue is thus settled, but the states could be serious about vindicating this, especially because of the potential tax revenue and even more so because of the looming fiscal cliff, where the states are looking cuts in federal spending. The states, as defenders of their power, will be very different from Angel Raich and Diane Monson in making their arguments to the court. I would not venture to guess how the Supreme Court would decide this when you have a well-argued state's 10th Amendment power being brought in a case like this."

"Enjoining state governments is unlikely to succeed," said Kreit. "Again, the federal government has taken as many different avenues as they can in trying to shut down medical marijuana, and yet, they've never argued that state laws are preempted. They know they're almost certain to lose in court. The federal government can't require states to make conduct illegal."

At ground zero, there is hope that the federal government will cooperate, not complicate things.

"We're in a wait and see mode," said Brian Vicente, executive director of Sensible Colorado and co-director of the Amendment 64 campaign. "It's our hope that the federal government will work with Colorado to implement this new regulatory structure with adequate safeguards that make them comfortable the law will be followed."

While that may seem unlikely to most observers, there is a "decent chance" that could happen, Vicente said. "Two mainstream states have overturned marijuana prohibition," he said. "The federal government can read the polls as well as we can. I think they realize public opinion has shifted and it may be time to allow different policies to develop at the state level."

The feds have time to come to a reasonable position, said Ethan Nadelmann, executive director of the Drug Policy Alliance.

"There is no need for a knee-jerk federal response, since the states are not required to create a regulatory scheme quickly," he said. "And while anti-marijuana forces more or less captured the drug czar's office early in Obama's first term, they're at odds with other people in the White House and the Obama administration whose views may be closer to our own. I think the White House will be the key. It's very likely that the fact that Attorney General Holder said nothing about the initiatives this fall, unlike two years ago, was because of the White House. I don't mean the drug czar's office; I mean the people who operate with respect to national politics and public policy."

Sterling disagreed about who is running drug policy in the Obama administration, but agreed that the feds have the chance to do the right thing.

"Given the large indifference to drugs as an issue by the Obama administration, its studious neglect of the issue, its toleration of an insipid director of ONDCP, its uncreative appointment of Bush's DEA administrator, it's clear that nobody of any seniority in the Obama White House is given this any attention. Unless Sasha and Malia come home from school and begin talking about this, it won't be on the presidential agenda, which means it will be driven by career bureaucrats in the DEA and DOJ," he argued.

That's too bad, he suggested, because the issue is an opportunity for bold action.

"They should respond in a vein of realism, which is that this is the future, the future is now," he advised. "They have an opportunity with these two different approaches to work with the states, letting them go forward in some way to see how they work and providing guidance in the establishment of regulations that would let the states do this and ideally minimize the interstate spillover of cultivation and sales."

"As part of that, they should ideally move to rewrite the Controlled Substances Act and begin working in the UN with other countries to revise the Single Convention on Narcotics. Our 100-year-old approach is now being rejected, not simply by the behavior of drug users, but by the voters, many of whom are not drug users," Sterling said. "That would be a way that a wise, forward-thinking, statesman-like public official should respond."

That would indeed be forward-thinking, but is probably more than can be reasonably expected from the Obama White House. Still, the administration has the opportunity to not pick a fight with little political upside, and it has time to decide what to do before the sky falls. Marijuana legalization has already happened in two states, and is an increasingly popular position. The federal government clearly hasn't been in the lead and it's not going to be able to effectively stop it; now, if it's not ready to follow, it can least get out of the way.

Medical Marijuana Update

All eyes may have been on the election last week, but the battles over medical marijuana didn't go away. Here are the highlights from the past few days. Let's get to it:

Arizona

Last Friday, state officials reported that 24 doctors were responsible for 75% of patient certifications in the state. The Arizona Department of Health Services said 475 doctors certified nearly 29,000 patients in that period, but that only a couple of dozen doctors were responsible for the vast majority of recommendations, raising questions about whether they were acting in patients' best interests. "A physician that is writing 1,000 to 1,500 certifications each year is not acting in his patients' best interests," said Health Services Director Will Humble, adding that he suspects such doctors are more likely to cut corners or be in it for the money.

California

Last Monday, the Corte Madera city council voted to continue its ban on new dispensaries. The council renewed the moratorium, cited the current conflict between state and federal laws. But an existing dispensary, Marin Holistic Solutions, will be allowed to continue to operate until at least July 2014, when its business license expires.

Last Tuesday, three Northern California communities voted to impose or maintain restrictions on medical marijuana production. In the Humboldt County town of Arcata, 69% of voters ensured easy passage of a utility tax aimed at households growing marijuana indoors. In the Siskiyou County town of Dunsmuir, medical marijuana advocates' attempt to roll back broad restrictions placed on medical marijuana grows last year failed with 47% of the vote. In Palo Alto, meanwhile, an attempt to overturn a ban on medical marijuana dispensaries and allow up to three of them was defeated by 62% of voters.

Also last Tuesday, Long Beach police continued their raids on dispensaries. Working with county and state authorities, Long Beach cops have hit seven dispensaries in the past few days, including two last Tuesday and one the following day. At least 25 people have been arrested and an unknown quantity of cash and medicine seized. The enforcement is a joint effort by the Long Beach Police Department, the California Franchise Tax Board and the Los Angeles County District Attorney's Office. More raids are likely unless the remaining dispensaries in the city shut down on their own, officials said.

Last Wednesday, three San Francisco supervisors called on President Obama to defend medical marijuana. "We want the president to keep the commitment he made to stop the federal government's attacks on medical marijuana," wrote supervisors  Christina Olague, David Campos and Scott Wiener. Obama is in San Francisco for a fundraiser. "We call on all citizens who support the use of medical cannabis to raise their voices with ours in telling President Obama to honor our laws for safe access," the supervisors wrote.

On Tuesday, the La Mesa city council voted to put a dispensary initiative on the 2014 ballot. The move came after more than 5,000 registered voters signed petitions seeking to allow dispensaries to operate in the city. The petition asks for an amendment to the city’s municipal code allowing the “compassionate use dispensaries” in specific zones in the city, to be regulated by the Community Development Department. The measure would also mean an extra 2 ½ percent sales tax on cannabis-based products sold in the city.

Maine

Last Friday, the head of the state's medical marijuana program was fired. John Thiele, who worked in the Department of Health and Human Services, broke the news at a Medical Marijuana Caregivers of Maine event. Medical marijuana community sources said Thiele was fired because he had become "too friendly with patients and caregivers," but a state representative said he was let go because "he was acting more as a social worker than a regulator."

New Mexico

Last Wednesday, the Medical Cannabis Advisory Board recommended keeping PTSD as a qualifying condition. After three hours of debate, the board voted unanimously to keep the disorder on its list of conditions for which medical marijuana can be recommended. An Albuquerque psychiatrist had challenged its inclusion, citing a lack of peer-reviewed studies, but he couldn't manage to sway the board, which also heard from numerous people who said they had benefited from its use.

Oregon

Last Wednesday, federal prosecutors moved to seize High Hopes Farm, a medical marijuana cultivation operation run by activist James Bowman. They are also going after two other properties where marijuana was cultivated. Authorities found more than 800 plants and 400 pounds of dried marijuana at his farm when they raided it earlier this year, but Bowman has claimed that his grow his legal under the Oregon Medical Marijuana Program.

WA Governor Meets with DOJ on Marijuana Legalization

Gov. Chris Gregoire (D) met Tuesday with Deputy Attorney General James Cole to discuss her state's passage last week of an initiative that legalizes and taxes the sale of marijuana for adults 21 and over. Federal law continues to consider marijuana possession, cultivation, and distribution to be criminal offenses.

Gov. Christine Gregoire (governor.wa.gov)
Gregoire spokesman Cory Curtis told the Associated Press Monday that Gregoire had added the meeting to a previously scheduled trip to Washington, DC, to seek clarity from the Justice Department.

"We want direction from them," said Curtis. "Our goal is to respect the will of the voters, but give us some clarity."

They didn't get it Tuesday. Gregoire told the Associated Press the Justice Department had yet to make a decision on whether it would move to block the laws in Washington and Colorado. They needed to make a decision "sooner rather than later," she said.

"I told them, 'Make no mistake, that absent an injunction of some sort, it's our intent to implement decriminalization,'" Gregoire said. "I don't want to spend a lot of money implementing this if you are going to attempt to block it."

Under I-502, possession of up to an ounce of marijuana is legal beginning December 6, but the state has a year to come up with rules for a state-licensed cultivation, processing, and distribution scheme. Home grows remain illegal, except for medical marijuana patients.

Colorado also passed a legalization measure last week, Amendment 80. The state governor and attorney general spoke by phone with Attorney General Eric Holder last Friday, but got no clear indications of what the Justice Department will do.

Colorado also passed a measure legalizing the drug. Colorado's governor and attorney general spoke by phone Friday with US Attorney General Eric Holder, with no signal whether the US Justice Department would sue to block the marijuana measure.

Possession of up to an ounce and cultivation of up to six plants will be legal in Colorado by January 5 at the latest. That's the last day for the governor to add the amendment to the state constitution. Colorado legislators have about a year to write rules for state-regulated commercial cultivation, processing, and sales.

In both states, state officials worry that the federal government will sue to block them from implementing regulations.

Washington, DC
United States

California Governor Says Feds Should "Respect" State Marijuana Votes

Responding to last Tuesday's votes to legalize marijuana in Colorado and Washington, California Gov. Jerry Brown (D) said Sunday the federal government should respect the states' rights to decide how to regulate marijuana. His remarks came on during an interview on CNN's "State of the Union" Sunday morning.

Jerry Brown (gov.ca.gov)
"It's time for the Justice Department to recognize the sovereignty of the states," Brown said in response to a question from host Candy Crowley. "California has a medicinal marijuana law, other states have passed some other measures. We have a laboratory of democracy. We don't always agree with all states. Some states have capital punishment, some states don't. Some now have legalized marijuana -- small amounts for recreational use -- many states have legalized medicinal marijuana. I believe the president and the Department of Justice ought to respect the will of these separate states."

Brown said that even if marijuana remains illegal under federal law, Washington should let the states experiment with other approaches.

"I think the federal law can maintain, but it shouldn't try to nullify reasonable state measures," he said. "I'm not saying the state can do anything they want, but the measures that have been adopted so far have been after vigorous debate. In fact, there's been a marijuana legalization [initiative] in California and it was rejected. It's been rejected in other states. So we are capable of self-government. We don't need some federal gendarme to come in and tell us what to."

If the Obama administration is about to come down on Colorado and Washington, it should think again, said Brown.

"I believe comity toward the states, that's a decent respect, ought to govern the policy and that means change the policy now," the veteran politician said.

Still, Brown didn't sound especially eager to see marijuana legalized in his state. 

"I'm not prepared to bring that up," he said in response to a question from Crowley. "We already have a fair amount of marijuana use in the guise of medical marijuana and there's abuses in that field. And as governor, I review paroles for those sentenced for murder and I have to review the paroles and I review hundreds of them. And so many of them start with drugs, with marijuana, with alcohol, when they're 12, they're 15," he said. "So it's dangerous. And people should not in any way take lightly the power of chemicals, whether it be cannabis or something stronger to affect the human mind in a way that really makes desperate people far more desperate."

Washington DAs Begin Dropping Marijuana Possession Cases

Some Washington state prosecutors have begun dismissing pending marijuana possession cases in the wake of last week's vote to legalize marijuana in the state. King County (Seattle) prosecutors have dismissed 175 cases involving adults 21 or over, while Pierce County (Tacoma) prosecutors have dropped about 50 more.On Tuesday, Clark County (Vancouver) prosecutors announced they, too, were dropping possession cases.

King County Prosecuting Attorney Dan Satterberg is no longer prosecuting small-time marijuana possession cases. (kingcounty.gov)
I-502 makes the possession of up to an ounce legal under state law and directs the state to come up with a system of state-owned marijuana stores. The possession provision doesn't come into effect until December 6, but some prosecutors have decided to apply the new law retroactively.

"Although the effective date of I-502 is not until December 6, there is no point in continuing to seek criminal penalties for conduct that will be legal next month," King County Prosecuting Attorney Dan Satterberg said in a statement last Friday.

Satterberg has jurisdiction over unincorporated King County, as well as cases on state highways and at the University of Washington. In Seattle itself, which has had a lowest law enforcement priority police in place for nearly a decade, City Attorney Pete Holmes has had a policy of refusing to prosecute simple possession cases.

Satterberg had 40 cases in which criminal charges had already been filed. Those charges will be dismissed. Another 135 cases awaiting charging decisions will be sent back to the arresting police agency.

Pierce County Prosecutor Mark Lindquist told the Seattle Times he was dropping "about four dozen" cases where pot possession was the only offense. "The people have spoken through this initiative," said Lindquist. "And as a practical matter, I don't think you could sell a simple marijuana case to a jury after this initiative passed."

In an interview with the Times, Satterberg said his office would continue to prosecute marijuana possession above one ounce, but would have "a buffer for those whose scales are less than accurate." His office will also charge felony possession for people holding more than 40 grams, but Satterberg said his office routinely allows such defendants to plead down to a misdemeanor.

More than 241,000 people have been arrested for small-time pot possession in Washington in the past 25 years, including more than 67,000 in the last five years. That will end as of December 6, but at least some Washington prosecutors aren't waiting.

WA
United States

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