Medical Marijuana

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Medical Marijuana Patients Get Say in Counties' Legal Challenge to California Medical Marijuana Law

FOR IMMEDIATE RELEASE ACLU, Drug Policy Alliance and Americans for Safe Access Step In to Represent Medical Marijuana Patients in Lawsuit SAN DIEGO A San Diego Superior Court ruled today that lawyers from the American Civil Liberties Union, Americans for Safe Access and the Drug Policy Alliance will be permitted to intervene in a lawsuit brought by several California counties seeking to thwart the state's Compassionate Use Act, which makes medical marijuana legal for patients with a doctor's recommendation. The groups joined the case on behalf of medical marijuana patients and their caregivers and doctors in order to assure their adequate representation in the legal proceedings. "We look forward to the opportunity to stand together with patients in defense of the rights of states to allow medicine to those in need," said David Blair-Loy, an attorney with the ACLU of San Diego and Imperial Counties. "We are heartened that the court recognized the necessity of giving voice to those truly at risk from the counties' ill-conceived actions." San Diego, San Bernardino and Merced counties argued in a lawsuit filed in state court that federal laws prohibiting all use of marijuana invalidate state laws that allow qualified patients to use medical marijuana. The ACLU, Americans for Safe Access (ASA) and the Drug Policy Alliance (the Alliance) filed legal papers on July 7, 2006 seeking to intervene in the proceedings. "As the largest grassroots organization of patients, doctors and scientists advocating for safe and legal access, we feel it's critically important that California's medical marijuana laws be respected by everyone," said Steph Sherer, executive director of ASA. Daniel Abrahamson, director of legal affairs for the Alliance, added, "These county governments have ignored the needs of their sick and dying residents and the advice of California's physicians. By intervening in the lawsuit, patients will have the chance to confront their rogue county officials in court and defend the legality of the Compassionate Use Act." In addition to entering the case, the group's filing asked for a court order compelling the counties to abide by and implement California's medical marijuana laws, as well as an order affirming that the state's medical marijuana laws are not preempted by contrary federal statutes. The lawsuit, initially brought by San Diego County and later joined by San Bernardino and Merced counties, challenges state laws that permit patients to use, and doctors to recommend, medical marijuana under explicit exemptions from state criminal laws that otherwise prohibit all marijuana use. The counties' lawsuit further challenges the state's Medical Marijuana Program Act, which calls for the implementation of an identification card program that would allow police and others to more easily identify legitimate medical marijuana patients. The ACLU, the Alliance and ASA maintain that state medical marijuana laws are not preempted by the federal ban on medical marijuana. While the federal government is free to enforce its prohibition on medical marijuana, even in states such as California that permit its use, all states remain free to adopt and implement policies of their own design an opinion shared by the California Attorney General's office and the attorneys general of several other states, including Colorado, Hawaii and Oregon, that permit medical use of marijuana. The groups represent Wendy Christakes, Pamela Sakuda, William Britt and Yvonne Westbrook, Californians who use physician-recommended marijuana to treat medical conditions and their side-effects, including chronic pain and sciatica, multiple sclerosis, rectal cancer, epilepsy and post-polio syndrome. The groups also represent Sakuda's spouse and caregiver, Norbert Litzinger, as well as Dr. Stephen O'Brien, a physician who specializes in HIV/AIDS treatment in Oakland, California, and believes that many of his seriously ill patients benefit from the medical use of marijuana. In addition to being co-counsel, ASA is also a party to the proceedings on behalf of its membership, which includes thousands of medical marijuana patients, caregivers and physicians residing in California. The Wo/Men's Alliance for Medical Marijuana (WAMM) is also represented by the groups. WAMM is a medical marijuana collective and hospice located in Santa Cruz, California, whose 250 members, the majority of whom are terminally ill, use marijuana to treat a range of conditions. The groups' legal papers are available online at: www.aclu.org/drugpolicy/medmarijuana/26090lgl20060707.html The ACLU's January 19, 2006 letter to the San Diego Supervisors explaining why California's medical marijuana laws are not preempted by federal law is online at: www.aclu.org/drugpolicy/medmarijuana/23565lgl20060119.html California Attorney General Bill Lockyer's opinion issued to the state's Department of Health Services affirming the validity of the state's medical marijuana laws is available at: www.aclu.org/drugpolicy/medmarijuana/21194res20050715.html Additional background on the case can be found at: www.aclu.org/drugpolicy/medmarijuana/23587prs20060124.html
Location: 
San Diego, CA
United States

My South Dakota Medical Marijuana Lawsuit Research

Our article about the South Dakota medical marijuana initiative and the likely lawsuit against state Attorney General Larry Long over what initiative supporters contend is his biased and possibly illegal description of the initiative that will appear on the ballot, got bumped this week, but we expect it to happen next week. I held off for a couple of reasons: First, the lawsuit has yet to actually be filed. Second, I couldn't manage to make contact with South Dakotans for Safe Access sole spokeswoman Valerie Hannah until Friday morning. Hannah, a Gulf War veteran who suffers from nerve gas exposure, will fill me in on what's going on Monday. We published the first story about the pending lawsuit last issue, beating the Associated Press, which came out with its own story Tuesday. While the AP explained that initiative supporters faulted the AG for his ballot language about doctors possibly losing their DEA prescribing licenses, it failed to mention the US 9th Circuit Court of Appeals decision in Conant v. Ashcroft, where the court ruled quite clearly that physicians have a First Amendment right to recommend medical marijuana without administrative penalty. Conant is a precedent, but it is not controlling in other circuits since the US Supreme Court refused the Justice Department's appeal of the decision. That is the only possibly out for Long--his ballot language says "doctors may" face problems with the DEA. Yes, and monkeys may fly out my butt.
Location: 
United States

Patients Get Okay to Oppose County's Marijuana Challenge (San Diego County)

Location: 
San Diego, CA
United States
Publication/Source: 
North County Times
URL: 
http://www.nctimes.com/articles/2006/08/04/news/sandiego/21_03_458_3_06.txt

Medical Marijuana: In New York Democratic Gubernatorial Race, Spitzer Says No, Suozzi Says Yes

Running an uphill race for the Democratic Party gubernatorial nomination against state Attorney General Eliot Spitzer, Nassau County Executive Thomas Suozzi hoped to use a televised debate to heighten his profile and open some space between himself and Spitzer on the issues. He managed to do that on a number of issuing, including medical marijuana.

When asked by debate moderator Dominick Carter whether medical marijuana should be legalized in the Empire State, Spitzer answered "no," which generated booing from the audience, while Suozzi answered "yes."

The next question was whether the candidates had ever used marijuana. Both said "yes," but Spitzer's affirmative was followed by laughter, then clapping from the audience. Neither candidate elaborated on their monosyllabic responses.

While Spitzer opposes medical marijuana, he has been a staunch supporter of Rockefeller drug law reform. Neither candidate, however, mentions Rockefeller drug law reform as a major issue on their campaign web sites.

(Audio of the debate can be accessed on the WNYC web site -- the marijuana exchange is 57:47 deep into the file.)

Feature: Medical Marijuana Crisis in San Diego as Feds, Locals Move to Shut Down Remaining Dispensaries

Already buffeted by a series of December raids and new raids and arrests of dispensary operators earlier this month, the San Diego-area medical marijuana community is now reeling under a new assault that is forcing the remaining dispensaries to close their doors. Last Friday, DEA agents visited dispensaries it had not already shut down and warned them they faced arrest if they stayed open. They shut down. The feds also seized any medicine they could get their hands on at the dispensaries they visited.

https://stopthedrugwar.org/files/mcwilliams2-reduced.jpg
July 2005 protest in Washington after suicide of Steve McWilliams, San Diego medical marijuana provider who was facing federal prosecution
The DEA and local officials claim the dispensaries were acting as de facto retail marijuana outlets and many "patients" were not really sick. But medical marijuana advocates say the dispensaries are permitted under state law and are serving sick and dying people. The battle is unlikely to be resolved any time soon, and people on both sides of the issue are looking to the courts or the legislature to clarify matters.

But in San Diego, patients and their supporters are also going after the local political establishment. Dozens of demonstrators gathered Tuesday in front of San Diego city hall to protest the shutdowns before entering the chambers to urge the city council to move to protect patients. So far, it hasn't worked.

"We need to stop raiding and start regulating," said Wendy Christakes, a medical marijuana patient and San Diego co-coordinator of Americans for Safe Access, the medical marijuana defense group. "Local officials are under both moral and legal obligations to develop a safe and secure system for the distribution of medical marijuana to eligible patients. Failing to do so has put us all at risk of DEA harassment and worse."

"We are facing a fairly serious situation down in San Diego right now," said ASA spokesman William Dolphin. "The DEA not only raided many dispensaries, they also paid visits to ones they hadn't previously shut down and warned them they could be arrested if they didn’t close. This is creating a serious access problem for patients in the San Diego area."

It's pretty clear that the local district attorney and law enforcement agreed with the DEA to go after what they've described as abuses of the medical marijuana law down there," said California NORML head Dale Gieringer. "The DEA operates in places where local authorities are willing to cooperate, and San Diego County has been in the forefront of opposition to the medical marijuana law. The city police chief and the county prosecutor are sympathetic to medical marijuana, but none of them are sympathetic to the pot club scene that emerged in San Diego."

"San Diego authorities are taking the position that the dispensaries shouldn’t exist at all," said Marijuana Policy Project communications director Bruce Mirken. "While there is arguably some ambiguity in the law, many communities have decided to permit and regulate dispensaries, and that is clearly what makes the most sense for patients. We think local authorities should give patients safe access to their medicine through a set of regulations communities can live with and use their police resources for something other than harassing the sick," he told DRCNet.

"This is frustrating and frightening," Mirken continued. "It seems like local officials in San Diego county have joined with the DEA to declare war on the dispensaries, and they feel like it is up to them to decide which physicians' recommendations are okay and which are not."

"This is an unacceptable action of the part of state and local officials, given the explicit will of the voters and the legislature," said ASA Dolphin. "We are pursuing legal action to force them to comply with state law. Along with the Drug Policy Alliance and the ACLU, we are party to the lawsuit filed against the county to force local officials to implement state law."

"Our contention is that nonprofit co-ops and dispensing collectives are legal under California state law," said Dolphin. "There is a lack of explicit direction from the state as to how these are to be regulated. The legislature decided to put the burden on local officials, much like zoning and other regulations, and local communities have the right and responsibility to deal with these things. But because of the volatility of the issue and resistance around the state, the legislature may have to act again with more explicit directions. The key question is how do we ensure patients have legal access to their medicine?"

"The law does not permit dispensaries," maintained San Diego County Assistant District Attorney Damon Mosler. "The law allows people to grow medical marijuana or buy it through the black market, which is cheaper than what the dispensaries are selling it for anyway," he told DRCNet. "We've had some 20-odd stores open up in less than a year selling marijuana openly. We have citizen groups taking pictures of lots of young people coming in and out of the dispensaries."

Mosler and the county prosecutor's office don't have a problem with medical marijuana, he said, just with people abusing the law. "When the law was passed, people though only sick and dying people would get marijuana, and the doctors would decide, but we have some rather unscrupulous physicians making a lot of money off selling recommendations. One doctor testified he made a half million dollars in recommendations. They are not writing prescriptions, so the DEA can't do anything," he complained.

"There are mechanisms under the law as written," said Mosler. "You can have collectives or co-ops where small groups of patients or caregivers get together. If there are legitimate patients who can't grow it, cities can coordinate the collectives." Although Mosler stated flatly that dispensaries are illegal, he conceded that the law is unsettled. "Oakland is taxing the dispensaries, but other cities are doing the same thing we are. Eventually the courts will have to decide whether the dispensaries are legal or not."

The other option for clarifying the law is the state legislature. "The legislature could act to clarify the law," said Mosler. "It may take us getting people in an uproar like now for that to happen."

CANORML's Gieringer disagreed. "There will not be any new state law until federal law is changed," he predicted. "The only long term solution is to make marijuana an over-the-counter drug. NORML is generally pushing in favor of local regulated distribution, local option cafes, dispensaries, and cannabis shops. It's just not worth trying to sort out who is medical and who isn't."

"It's possible to address this at the state level," said MPP's Mirken, grimacing at the prospect. "We tried to address this before with SB 420, and that was the subject of much wrangling and produced mixed results. Just getting that passed was like pulling teeth, and I don’t imagine the legislature really wants to wade into this again."

It would be better if local communities could craft reasonable regulations, Mirken said. "It is not unreasonable for different communities to craft different standards, but local governments need to approach this with some level of common sense and decency. If that doesn’t happen, we will have to figure out what to do next."

California's medical marijuana law has evolved into a serious muddle. Something is going to have to happen to sort it all out. In the meantime, California dispensary operators should be looking over their shoulders.

MPP's Mirken had some advice for them. "Be very careful and understand that you could become a federal target," he warned. Operators should work with local officials to demonstrate community support, he suggested. "The most important thing is for local officials in communities supportive of medical marijuana to make clear this sort of DEA action is not welcome in their towns. Local officials need to start sending that message loud and clear. I don’t think the DEA is stupid enough to do a wholesale crackdown in places like San Francisco or West Hollywood, but San Diego rolled out the red carpet."

Medical Marijuana: South Dakota Ballot Description Erroneous and Apparently Illegal

Organizers of South Dakota's medical marijuana initiative are in for a tough fight in the socially conservative Upper Midwest state. All they ask is that it be a fair fight, but South Dakota Attorney General Larry Long (R) apparently isn’t ready to provide them with an even playing field. Long's office this week issued the summary of the initiative that will appear on the ballot, and that summary contains biased and factually incorrect statements -- an apparent violation of South Dakota law.

The summary language provided by Attorney General Long and appearing on the South Dakota Secretary of State's election web page is as follows:

"Currently, marijuana possession, use, distribution, or cultivation is a crime under both state and federal law. The proposed law would legalize marijuana use or possession for any adult or child who has one of several listed medical conditions and who is registered with the Department of Health. The proposed law would also provide a defense to persons who cultivate, transport or distribute marijuana solely to registered persons. Even if this initiative passes, possession, use, or distribution of marijuana is still a federal crime. Persons covered by the proposed law would still be subject to federal prosecution for violation of federal drug control laws. Physicians who provide written certifications may be subject to losing their federal license to dispense prescription drugs."

While initiative supporters point out several examples of biased or irrelevant description -- referring to "any adult or child" instead of "anyone" in an attempt to raise the specter of youth drug use, referring repeatedly to federal laws against marijuana possession -- it is the final sentence of Long's summary that really leaps out.

Long writes that doctors "may be subject to losing their federal license to dispense prescription drugs in they write recommendations for medical marijuana use," and that's just wrong. The only federal court precedent in such matters, Conant v. Ashcroft, clearly states that physicians may not be punished by the DEA for exercising their First Amendment right to recommend a patient use marijuana. In Conant, the Supreme Court refused to hear the Justice Department's appeal of that US 9th Circuit Court of Appeals opinion.

According to the South Dakota criminal code, "Publication of false or erroneous information on constitutional amendments or submitted questions is a misdemeanor. Any person knowingly printing, publishing, or delivering to any voter of this state a document containing any purported constitutional amendment, question, law, or measure to be submitted to voters at any election, in which such constitutional amendment, question, law, or measure is misstated, erroneously printed, or by which false or misleading information is given to the voters, is guilty of a Class 2 misdemeanor."

Initiative supporters told DRCNet this week they are examining their options. Expect more news on this front next week.

Nightline on San Francisco Wharf Medical Marijuana Fight

Location: 
United States
Publication/Source: 
ABC News
URL: 
http://abcnews.go.com/Nightline/story?id=2218471&page=1

ASA Press Release on Americans with Disabilities Act Medical Marijuana Case

For Immediate Release­: July 25, 2006 Americans for Safe Access State, National Groups Add Support to Medical Marijuana Employment Case Legislators, Medical Organizations, Disability Advocates File in Supreme Court San Francisco --­ Medical organizations, California state legislators and disability rights organizations have all filed supporting briefs with the California Supreme Court in a landmark employment rights case involving medical marijuana. The amici curiae or ‘friend of the court’ briefs all argue that medical marijuana patients deserve civil employment protections provided by California state law. The case is being litigated by the medical marijuana advocacy group Americans for Safe Access (ASA), on behalf of Gary Ross, a systems engineer fired in September 2001 for failing an employer-mandated drug test because he uses medical marijuana on his doctor’s advice. “This case is an opportunity for the California Supreme Court to make clear that medical marijuana patients enjoy the same civil rights as everyone else,” said Steph Sherer, executive director of ASA. “Like all disabled persons, Mr. Ross deserves equal protection under the law.” Ross’s physician had recommended he use cannabis for chronic back pain resulting from injuries sustained during his military service. But his employer, RagingWire Telecommunications, refused to make an exception to their policy that anyone testing positive for marijuana use be terminated. Mr. Ross went to court, arguing that RagingWire illegally discriminated against him because of his condition, but a state superior court and then an appellate court rejected his argument. ASA appealed to the California Supreme Court, which decided to review the case in November 2006. The amicus brief filed by ten national and state medical organizations, with the help of the Drug Policy Alliance, makes the case that medical marijuana patients should be considered no different than other patients who require medication to live and work effectively. The medical organizations argue that allowing the firing of medical marijuana patients "erects an unnecessary and unfortunate barrier to effective relief for potentially thousands of members of California’s workforce who suffer from acute or chronic pain, or other debilitating medical conditions." The organizations signing the medical amicus brief in support of ASA’s case are the American Nurses Association, American Pain Foundation, American Medical Women's Association, Lymphoma Foundation of America, American Nurses Association, California Nurses Association, AIDS Action Council, Gay Men's Health Crisis, National Women's Health Network and Doctors of the World-USA. (www.safeaccessnow.org/downloads/ross_medical.pdf) The legislative amicus brief is being filed by all five of the sponsors of Senate Bill 420, the 2003 legislation that expanded and clarified California’s medical marijuana law. In it, the current and former lawmakers make clear their intent to extend the state’s normal civil protections and guarantees to medical marijuana patients, including the medical disability protections afforded Californians by the Fair Employment and Housing Act. “[T]he FEHA, together with the Compassionate Use Act, authorize and protect the use of medical cannabis by employees away from the workplace and during non-business hours,” according to the brief signed by former Senator John Vasconcellos, the bill’s author, and Assembly members Mark Leno, Jackie Goldberg, Paul Koretz and Loni Hancock, who were all co-authors of the bill. (http://www.safeaccessnow.org/downloads/ross_legislative.pdf) In addition to those briefs, two disability rights organizations are also weighing in on the issue: Equal Rights Advocates and Protection and Advocacy. In their brief, the disability rights advocates note that the lower courts’ decisions, upholding the firing of Mr. Ross, “plac[es] individuals for whom marijuana is safe, effective and needed treatment in legal limbo, with their ability to earn a living dependent on the continued indulgence of their employers.” (http://www.safeaccessnow.org/downloads/ross_disability.pdf) Americans for Safe Access is the nation’s largest organization of patients, medical professionals, scientists and concerned citizens promoting safe and legal access to cannabis for therapeutic use and research. Information about ASA is available at http://www.SafeAccessNow.org. # # #
Location: 
CA
United States

What is going on with the DEA and the San Diego medical marijuana dispensaries?

On Friday, the DEA returned to the more than a dozen dispensaries in San Diego raided a couple of weeks ago and warned them to shut their doors. For the Drug War Chronicle this week, I'll be looking into that and what it might mean across the state. I'm also waiting for the Portland "lowest law enforcement priority" initiative's signatures to be verified. I'll write about that this week if we get an official announcement. And I'm sure there will be more. There always is.
Location: 
San Diego, CA
United States

Medical Marijuana in South Dakota

South Dakota will vote on a medical marijuana initiative in November, and it looks like it will be an uphill battle. According to my sources within the campaign, the measure is not doing well in internal polling, but it is early. The campaign is laying low for now, but has already found a patient spokesperson and a former policeman as a spokesman. Bob Newland, South Dakota's "Mr. Marijuana," the hemp/pot/medical marijuan activist responsible for the initiative has agreed to keep a low profile, while MPP's experienced cadres run the show. Articles on the South Dakota campaign will show up periodically in the Chronicle. This is my state, and I'm actually here, and I intend to get involved as well as write about it.
Location: 
SD
United States

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