Americans for Safe Access: August Activist Newsletter

Calif. Appellate Court Upholds Medical Marijuana Law

ASA Defeats County Challenge; San Diego Wants Supreme Court Review

An appeals court has ruled that California's medical marijuana laws must be implemented. A handful of counties had challenged the ID card program the state legislature established, saying that federal prohibition trumped state law. That challenge was rejected by a judge in 2006 and again by an appeals court this month. In both instances, the courts sided with attorneys from Americans for Safe Access, the ACLU and the California Attorney General's office, who all argued that federal and state laws can exist side by side.

ASA Chief Counsel Joe Elford

In a unanimous opinion, the Fourth District Court of Appeal ruled that federal law does not preempt the state's medical marijuana program. Nonetheless, San Diego County supervisors have voted to appeal the decision to the state Supreme Court.

"This is a huge win for medical marijuana patients, not only in California, but across the country," said Joe Elford, Chief Counsel of Americans for Safe Access, who argued before the appellate court on behalf of patients. "This ruling makes clear the ability of states to pass medical marijuana laws with an expectation that those laws will be upheld by local and state, if not federal, officials."

San Diego County officials filed suit against the state in 2006, hoping to avoid implementing the medical marijuana ID card program mandated by state law. They were originally joined by Merced and San Bernardino counties in arguing that California's medical marijuana laws were not valid because federal laws prohibiting all marijuana use supercede any state law. Merced abandoned the challenge and began implementation after losing in superior court later that year.

In rejecting that argument, Justice Alex McDonald wrote for the court that the federal Controlled Substances Act (CSA) "signifies Congress's intent to maintain the power of states to elect 'to serve as a laboratory in the trial of novel social and economic experiments without risk to the rest of the country' by preserving all state laws that do not positively conflict with the CSA."

ASA argued on behalf of the interests of patients in the original case and the appeal, filing briefs along with the ACLU Drug Law Reform Project. Officials from the City of San Diego broke with their county counterparts and filed an amicus 'friend of the court' brief in the appeal, siding with the Attorney General and medical marijuana patient advocates.

"More than eleven years after the passage of Proposition 215, it's about time that we all got on the same page with regard to medical marijuana and the protections afforded by California law," said Elford. "With two appellate court decisions clearly stating that federal law should not be an excuse to avoid enforcing state law, it is now time for full implementation in California."

In March, the California Supreme Court denied review of City of Garden Grove v. Superior Court, another appellate court case that found the state's medical marijuana law was not preempted by federal law.

ASA will be launching a campaign soon to educate elected officials across the state about their obligation to implement state law, in particular the state ID card program, and the benefits of doing so for both law enforcement and medical marijuana patients.

Federal Legal Confusion Yields Conviction

Dispensary Owner Obeyed State and Local Laws but Faces Five Years in Prison

The closely watched federal trial of a California medical marijuana dispensary owner has resulted in guilty verdicts on all counts. Charlie Lynch, 46, faces a minimum of five years in prison, even though he operated his dispensary legally under state law, complied with regulations set by Morro Bay city officials, and contacted federal authorities about his plans.

Charlie Lynch cutting the ribbon on opening day

Lynch, a successful software developer with no prior criminal record, sought and received a business license from the city and was welcomed to the local Chamber of Commerce. Central Coast Compassionate Caregivers was open for 11 months before federal agents raided it on March 29, 2007.

"It is a huge waste of taxpayer resources for the federal government to spend millions of dollars attacking someone who was abiding by local and state law in every respect," said ASA Chief Counsel Joe Elford. "It is shameful and a tragedy for Mr. Lynch and his patients."

Federal medical marijuana trials typically forbid any mention of state or local laws, or even the medical conditions of the patients. But attorneys' for Lynch persuaded the judge to allow limited testimony from the Morro Bay mayor and city attorney, as well as Lynch's own account of attempts he made to operate within the law.

Lynch testified that he called federal authorities on four occasions to find out if he could legally open a dispensary. He claims a DEA agent told him it was up to state and local laws, and he has the phone records to prove that he at least made the call. Lynch's federal public defenders argued that this amounted to a legal assurance, and that the jury should find that any violations of federal law were the result of entrapment.

But the jury foreman told an ASA volunteer that jury was not persuaded by Lynch's contact with the DEA because he could not provide names of the people he spoke with. Lynch's discussed those conversations with an attorney before opening the dispensary, but the attorney was not allowed to testify.

During the week-long trial, Lynch testified that he did everything he could to make sure his activities were within the law. His federal public defenders introduced evidence showing that he maintained scrupulous records and enforced an uncompromising ethical code of conduct for his employees. Federal prosecutors allege that he was concerned only with profits and that some of the patients to whom he sold marijuana were under 21, an offense that carries federal sentencing enhancements.

Lynch attempted to call one of those patients to the stand as a character witness. Owen Beck, a 17-year old bone cancer survivor, appeared in court with his parents, who had always accompanied him on his visits to the dispensary, per city regulations. But after hearing that the marijuana Beck bought was being used on the advice of his Stanford oncologist, Judge George Wu ruled his testimony inadmissible. Beck's father told reporters that Lynch had never asked for or received payment for the cannabis he provided Owen.

Though Lynch was in full compliance with state and local law, the federal investigation against Lynch was supported by San Luis Obispo Sheriff Pat Hedges. Hedges is being sued by a former patient of Lynch's for seizing her medical records in the raid.

Soon after the raid, Lynch reopened his dispensary. The next month, Lynch's landlord was threatened by the DEA with forfeiture of his property unless he evicted Lynch, leading to the dispensary's closure in May 2007.

Lynch was found guilty of conspiracy to possess and possession with intent to distribute marijuana and concentrated cannabis, manufacturing marijuana, knowingly maintaining a drug premises, and sales of marijuana to a person under the age of 21.

Lynch is currently scheduled to be sentenced on October 20. For more on the Lynch case and what you can do about it, see ASA's blog at www.AmericansForSafeAccess.org/Lynchblog.

ASA Chapter Focus: Hawaii ASA

2008 has been a very eventful year for ASA in Hawaii. Since January, new ASA chapters have been established in Hawaii and Honolulu Counties. On the island of Oahu, the Honolulu County ASA has hosted informational rallies, phone bank campaigns, and outreach efforts to educate state and federal officials on medical cannabis laws, the science behind medical use, and the needs of patients in Hawaii. Members of the Hawaii County Chapter have been involved in these educational programs as well.

On the Big Island (Hawaii County), there has been widespread support for petitioning to add a county-wide initiative to the November Ballot that would make cannabis the lowest-level law enforcement priority there.

In July, Hawaii's Governor, Linda Lingle, vetoed a bill (HB2675) that would have established a task force to study the effectiveness of current state law. Unfortunately, the bill fell short of a veto override.

Also in July, controversy erupted as the Hawaii Department of Public Safety violated patient privacy laws by giving a local newspaper reporter private information on over 4000 state-registered medical cannabis patients. This privacy violation highlights the problems associated with having law enforcement agencies oversee state medical programs. Big Island ASA is working with the Governor's office to transfer oversight of the medical cannabis program to the Department of Public Health.

ASA's two Hawaii chapters have built alliances with several other organizations in the state, including THC Ministries and Patients Without Time, as well as student groups from several college campuses and the West Oahu for a Cure Foundation, which works on HIV and cancer-related issues.

ASA is attempting to establish chapters in each city and to expand membership in established chapters. If you can help, please contact ASA's local chapter leaders to get more information on immediate goals for improving patient access, such as: establishing secured growing facilities, clarifying state law to allow collectives and dispensing organizations, and establishing patient protections for employment, housing, and reciprocity for other medical cannabis states.