Federal Government

In a ruling Tuesday, the Court of Appeals for the DC Circuit denied a petition seeking to reschedule marijuana. The court held that while petitioners had presented some evidence of marijuana's medical efficacy, there was not enough to override the federal government's decision to place marijuana on Schedule I, the most restrictive classification.

Schedule I drugs, which also include heroin, LSD, and ecstasy, are those that are considered to have no medical use and a high potential for abuse. Marijuana was placed in Schedule I when Congress passed the Controlled Substances Act in 1970, and the DEA and FDA have consistently refused efforts to reschedule it.

The ruling came in Americans for Safe Access v. Drug Enforcement Administration. It comes more than 10 years after the Coalition for Rescheduling Cannabis, led by Jon Gettman, originally filed its petition in October 2002 and 40 years after NORML first filed a petition seeking to reschedule the herb. The Coalition petition was denied in 2011, after ASA sued the Obama administration for delaying its response. The current appeal was the first time in two decades that a federal court has reviewed the issue of whether there exists adequate scientific evidence to reschedule marijuana.

The first challenge for petitioners was that of standing to sue. The presence of disabled Air Force veteran and Veterans for Medical Cannabis Access member Michael Krawitz among the petitioners provided that standing. Krawitz, who has tussled with the Department of Veterans Affairs over his use of medical marijuana, "has suffered injury-in-fact because he must shoulder a financial cost for services he would otherwise obtain for free of charge from the VA" and thus has standing to sue, the court held.

But that was just the threshold question. On the substantive issue of rescheduling marijuana, the court came down squarely on the side of the federal government.

"The question before the court is not whether marijuana could have some medical benefits," wrote Senior Circuit Court Judge Harry Edwards for the majority. "Rather, the limited question that we address is whether the DEA’s decision declining to initiate proceedings to reschedule marijuana under the CSA was arbitrary and capricious… On the record before us, we hold that the DEA’s denial of the rescheduling petition survives review under the deferential arbitrary and capricious standard. The petition asks the DEA to reclassify marijuana as a Schedule III, IV, or V drug, which, under the terms of the CSA, requires a 'currently accepted medical use.' The DEA's regulations… define 'currently accepted medical use' to require, inter alia, 'adequate and well-controlled studies proving efficacy.' … We defer to the agency’s interpretation of these regulations and find that substantial evidence supports its determination that such studies do not exist."

"The court says the DEA didn't act arbitrarily and capriciously, but if that wasn't arbitrary and capricious, I'm going back to the dictionary," said a frustrated Krawitz. "This is an issue with 70% supporting change, yet nothing happens. We have a handful of champions in Congress, but where is one person in the federal government who represents us? How can there be so little integrity at the National Institutes for Health and the FDA, where they are supposed to be there to protect our interests?"

"We're stuck in a Catch-22 -- the DEA is saying that marijuana needs FDA approval to be removed from Schedule I, but at the same time they are obstructing that very research," said Tamar Todd, senior staff attorney for the Drug Policy Alliance. "While there is a plethora of scientific evidence establishing marijuana's safety and efficacy, the specific clinical trials necessary to gain FDA approval have long been obstructed by the federal government itself."

"It's more of the same from the federal courts. I'm disappointed, but not surprised," said Dale Gieringer, longtime head of California NORML. "There has been a long line of court decisions affirming the federal government's dictatorial power to make arbitrary decisions about drugs. Ironically, this decision comes on the same day as the 40th anniversary of Roe v. Wade. Women in this country have the right to terminate the live of their fetuses, but not to smoke a joint."

"To deny that sufficient evidence is lacking on the medical efficacy of marijuana is to ignore a mountain of well-documented studies that conclude otherwise," said Joe Elford, Chief Counsel with Americans for Safe Access (ASA), which appealed the denial of the rescheduling petition in January of last year. "The Court has unfortunately agreed with the Obama Administration's unreasonably raised bar on what qualifies as an 'adequate and well-controlled' study, thereby continuing their game of 'Gotcha.'"

ASA said it will seek an en banc review of the decision by the full DC Circuit and will go to the Supreme Court if necessary. The group said it will argue that the Obama administration has acted "arbitrarily and capriciously" by shifting its definition of what constitutes "medical efficacy." The administration now argues that Stage II and III clinical trials are necessary to show efficacy, while ASA contends that the more than 200 peer-reviewed studies it cited in legal briefs in the case meet the standard.

"The Obama Administration's legal efforts will keep marijuana out of reach for millions of qualified patients who would benefit from its use," said Elford. "It's time for President Obama to change his harmful policy with regard to medical marijuana and treat this as a public health issue, something entirely within the capability and authority of the executive office."

While ASA pursues its appeals in the courts, it is also trying to turn up the heat on Congress and the administration. With rescheduling through the courts blocked -- at least pending a favorable ruling on appeal -- that is where the action will be.

"I'm not optimistic that the courts are going to change their position," said Gieringer. "That means we will have to put pressure on the administration or Congress to do it."

But it's important to see that rescheduling is not an end in itself, but a means, said Gieringer.

"Rescheduling in itself would accomplish very little in the real world," he pointed out. "It would not end the federal-state conflict on marijuana, and even if it were rescheduled, there is still no FDA-approved supply. All of the marijuana out there today would still be an illegal controlled substance without FDA approval."

Marijuana policy reform is not just about real world effects; it is also about perceptions, and rescheduling marijuana would have been something of a game changer, as Gieringer noted.

"Symbolically, of course, it would have been huge," he said. "It would open the way for prescriptions and help unblock research -- the controls on Schedule II drugs are not nearly as fearsome. Still, rescheduling would have been a baby step, but a lot of other stuff has to happen, and that requires an act of Congress, and I haven't seen any sign of that."

But the federal courts have so far made clear that they will defer to Congress and the executive branch on these issues. That means that's where the battle will have to be won.

An important federal court ruling, medical marijuana bills start popping up in the states, more providers get prosecuted, and LA continues to stumble toward a resolution of its dispensary issue. Let's get to it:

National

On Tuesday, the DC Circuit Court of Appeals rejected a petition to reschedule marijuana.The nearly 11-year-old petition had been rejected by the DEA, and the appeals court upheld that decision. While attorneys for petitioners say they will appeal -- to the Supreme Court if necessary -- advocates are now turning their attention to Congress and the administration.

California

Last Wednesday, the state Supreme Court denied review of a landmark medical marijuana case, People v. Jackson. In that case, the Fourth District Court of Appeals had overturned the conviction of San Diego dispensary operator Jovan Jackson and established a clear defense for Jackson and others like him who are prosecuted in state court. The Fourth District court had held that in mounting a defense at trial, "Jackson was only required to produce evidence which would create a reasonable doubt as to whether the defense provided by the [Medical Marijuana Program Act] had been established." The court further held that, "the collective or cooperative association required by the act need not include active participation by all members in the cultivation process but may be limited to financial support by way of marijuana purchases from the organization. Thus, contrary to the trial court's ruling, the large membership of Jackson's collective, very few of whom participated in the actual cultivation process, did not, as a matter of law, prevent Jackson from presenting an MMPA defense."

Last Friday, a Stockton dispensary operator pleaded guilty in federal court to marijuana manufacturing and distribution charges. Lynn Farrell Smith, 62, was a co-owner of a half dozen Stockton and Sacramento-area dispensaries and grew marijuana at a Stockton warehouse to supply the stores. Prosecutors said he made millions while hiding under the cover of the state's medical marijuana laws.

On Tuesday, the LA city council voted to put two medical marijuana initiatives on the May ballot. The two must come up for a second vote next week, when the council considers its own third initiative. One initiative would allow about 100 dispensaries to remain open; the other would allow most of the estimated 500 dispensaries currently operating in the city to remain open.

Also on Tuesday, the Antioch city council voted to ban dispensaries. The ban passed on a 3-2 vote after city staff told the council it had concerns about burglaries and robberies at dispensaries and over the sale of illegal drugs to youngsters.

Connecticut

Last Wednesday, state officials handed in draft regulations for in-state cultivation and sale of medical marijuana to Gov. Dan Malloy (D). The draft rules include nuts-and-bolts guidelines for growers, doctors, patients obtaining medical certificates and even the disposal of unused marijuana, which could be turned in to local police. If the regulation process proceeds smoothly, dispensaries could be operating by late this year or early next year.

Iowa

Last Wednesday, Rep. Bruce Hunter (D-Des Moines) introduced a medical marijuana bill. The bill, House File 22, would allow Iowans with debilitating medical conditions to obtain and use marijuana without fear of arrest. It would also create a dispensary system.

Montana

Last Thursday, a medical marijuana worker was sentenced to four years in federal prison for his involvement with Montana Cannabis, which was raided by the DEA as part of 2011's statewide sweep of dispensaries. Dan Nichols had done construction and worked as a night watchman at the dispensary. Several other Montana Cannabis operators have already been sentenced to federal prison, including 68-year-old Richard Flor, who died there.

Also last Thursday, a medical marijuana provider was convicted in federal court of "conspiracy to manufacture and distribute marijuana" and "possession with intent to distribute marijuana," but was acquitted of another felony, possession of a firearm in furtherance of a drug-related crime. Former Montana Grizzlies quarterback Jason Washington claimed to be in compliance with Montana's medical marijuana law but, as is typical with such federal cases, defendants like Washington are routinely denied a defense. He is facing a 5-year mandatory minimum sentence, up to 40 years in prison, and more than $10 million in fines and forfeitures.

Also last Thursday, a district court judge issued a second injunction blocking implementation of SB 423, the law passed by the state legislature that effectively gutted the state's voter-approved medical marijuana law. Judge James Reynolds had ordered a similar injunction last year, but was reversed by the state Supreme Court. After hearing new testimony, he issued a more thorough ruling last Thursday.

Oklahoma

On Monday, Sen. Constance Johnson (D-Oklahoma City) filed a medical marijuana bill. The bill, Senate Bill 902, directs the medical board to develop and adopt rules allowing patients to obtain permission from their doctors to use marijuana.

South Dakota

On Wednesday, two senators said they were introducing a medical marijuana defense bill.Sen. Craig Tieszen (R-Rapid City) and Rep. Dan Kaiser (R-Aberdeen) were hoping to introduce the bill Wednesday. It would allow persons caught with two ounces or less of marijuana to argue a medical necessity defense.

Texas

Last Friday, Rep. Elliot Naishtat (D-Austin) introduced a medical marijuana affirmative defense bill. The bill, House Bill 594, would enact protections for physicians who make written or oral statements to their patients that marijuana would likely provide benefits that outweigh any risks. Patients whose doctors make such statements would be able to present evidence of the statement in court if charged with possession of marijuana and have their charges dismissed.

Washington

Last Wednesday, the Bremerton city council voted to ban collective medical marijuana gardens. Such gardens are legal under a 2011 state law, but the council sided with city attorneys, who warned that regulating and permitting the gardens might put city workers at risk from the federal government, which considers all marijuana production illegal.

special to Drug War Chronicle by investigative journalist Clarence Walker, cwalkerinvestigate@gmail.com

A case that began with reports of suspicious activity in northeast Wisconsin forest land last spring may be headed for the US Supreme Court. That's because a US district court judge ruled in the case last fall that it was okay for the DEA to enter the rural property without a warrant and install surveillance cameras that were used to help convict five members of a family on charges they were growing marijuana.

The ruling last October came in a motion to suppress the evidence obtained by the warrantless video cameras. After that ruling, the defendants, five members of the Magana family, pleaded guilty to possession with intent to distribute marijuana and now face up to life in prison and up to $10 million in fines. But as part of the plea deal, they retained their right to appeal the ruling.

And their attorneys say they are prepared to take the case all the way to the US Supreme Court.

In their motion, they had asked the court to suppress evidence because of the property's locked gate and "No Trespassing" sign. Since the properties were heavily wooded and posted with signs, the owners were entitled to an expectation of privacy, the attorneys say.

"After sentencing, the first round of appeals will go to the Seventh Circuit and if there's no favorable ruling there, the cases will be filed into the US Supreme Court," Wisconsin attorney Stephen Richards told the Chronicle last week.

"That one's action could be recorded on their own property even if the property is not within the curtilage is contrary to society's concept of privacy," said Green Bay attorney Breet Reetz, who represents Marco Magana.

Curtilage is a term of legal art referring to the area of a property immediately surrounding a house or dwelling. Past Supreme Court jurisprudence, particularly US v. Oliver, had held under the "open fields" doctrine that areas outside the curtilage are not subject to the same Fourth Amendment protection as a home itself. "An individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home…," the court held in Oliver. (Perhaps not coincidentally, Oliver was another marijuana cultivation case, in which Kentucky deputies walked a mile onto the property before spotting a marijuana field. Their search was upheld.)

It all began in rural Marinette County last May, when a fishermen reported to local authorities that he had been run off the land by two men who told him "fishing is closed" and that he had observed trees cut down and power lines running across the property. Authorities investigated and found the property and two more adjacent properties were owned by members of the Magana family, which had purchased them months earlier.

Authorities left it at that until the following month, when a logger reported that when he had gone to check on a timber stand at one of the properties, he stumbled over a marijuana cultivation operation with more than 30 plants in a 50' x 50' clearing. The DEA then was called in and entered the Magana's properties without a warrant. Agents installed video cameras that eventually captured incriminating evidence of vehicles traveling in and out of the properties.

It wasn't until the DEA observed some of the men handling what believed to be marijuana did they go and request a warrant. A warrant was signed and the agents, accompanied by several local sheriff officers, executed the warrant and arrested the men at separate addresses near Green Bay.

The bust was big news in Marinette County.

"You've got thousands of plants, and as healthy as they look, this is a big operation," Sheriff Jerry Suave told local reporters at the time. The grow is probably "the largest I've seen," he added.

Before trial, set for the fall, counsel for the Maganas filed a motion to suppress the evidence, informing the court that videos from the surveillance camera showed dates that indicated that the camera had been running for 79 consecutive hours before DEA agent Steven Curran obtained a search warrant for the property.

"It is undisputed that the government trespassed without a warrant upon private property with visible 'No Trespassing' signs" posted," Reetz wrote in the motion, noting that the camera had operated from July 12 to July 15, but the warrant wasn't issued until July 17. Nor were there any "exigent circumstances" that would have allowed officers to enter the property without a warrant.

Federal prosecutors were ready with a response.

"Officers entering an 'open field' is not an area enumerated as protected under the Fourth Amendment," countered Assistant US Attorney for Eastern Wisconsin James Santelle. "'Open fields,' woods, and private lands are not 'persons, houses, papers, and effects' protected under the Constitution."

That was good enough for Eastern Wisconsin US District Court Chief Judge William Griesbach, who dismissed the defense motion and ruled that it was legal for the DEA to go onto private property without a warrant to install multiple covert digital cameras, and to use the evidence they obtain that way to obtains warrants and in court. Citing US v. Oliver, Griesbach held that the rural properties were curtilage and not protected by the Fourth Amendment.

But the Maganas' attorneys and other legal experts argue that even though "open fields" are not considered curtilage, if "No Trespassing" or "Private Property" signs are posted on the land, the property owner should still be entitled to an expectation of privacy under the law. And they are willing to take their argument to the highest court in the land.

"We have become a nation of men and not a nation of laws, which, is what our founding fathers didn't want us to become," Reetz said.

After formal sentencing, the case heads for the US 7th Circuit Court of Appeals. If Reetz and Richards don't prevail there, it is on to the Supreme Court. If the court were to take up the case, it would once again have the opportunity to try to untangle the dilemmas that result when the Fourth Amendment runs up against new technologies, for better or worse.

DEA agents raided three Los Angeles medical marijuana dispensaries Wednesday afternoon, according to a preliminary report from Americans for Safe Access California director Don Duncan. More details were not forthcoming by press time.

According to Duncan, the DEA struck LA Wonderland on West Pico Boulevard, the Downtown Collective on South Hill St. near downtown, and the Iron Works in Venice.

The federal government has unleashed the DEA on dispensaries under both the Bush and the Obama administrations, although there was a respite between 2009 and late 2011, when the Justice Department had a policy of generally leaving them alone. But that policy shifted again in 2011, and both the DEA and federal prosecutors have been busy going after dispensaries since then. One Southern California dispensary operator, Aaron Sandusky, was sentenced to 10 years in federal prison just this Monday.

The policy has not been limited to California. While hundreds of California dispensaries have been forced out of business by raids, asset forfeiture threats and/or prosecutions, so have dozens of dispensaries in Colorado, and a series of statewide raids in Montana in the spring of 2011 virtually wiped out that state's dispensary scene.

The LA DEA raids come as the city grapples over what to do about dispensaries. An effort by the city council to shut them all down was blocked by popular opposition. Now, the council, and perhaps city voters, will have to consider two different municipal initiatives, one of which would limit the number of dispensaries in the city to about 100, the other of which would allow most existing dispensaries to stay open.