Medical Marijuana Update
...by Marie Mills
Guidelines for the implementation of California's Prop. 215 are being established by each county. Where you live in California determines what police interpretation of 215 you are ruled by.
In many rural counties, especially those of northeast California, 215 means nothing. In places like urban Oakland, you may legally cultivate dozens of plants and possess pounds of processed marijuana, and if you have a valid medical document and no evidence of sales, you will not be arrested. Humboldt, Mendocino, and Trinity Counties each have different guidelines for 215 implementation.
Mendocino County has written guidelines, allowing patients or caregivers to grow twelve immature or six mature plants and to possess 2 1/2 pounds of processed marijuana. The guidelines call for voluntary patient registration with the Public Health Service. Mendocino law enforcement recognizes only medical recommendations given by local doctors. Mendocino sheriff deputies appear to respect these guidelines. The CLMP office received no calls from patients, who followed these guidelines, who had had their medicinal plants or marijuana medicine confiscated. We did receive a call from a Mendocino medical grower who grew 36 outdoor plants for six patients. Humboldt County CAMP helicopters flew the garden heavily but law enforcement officers did not appear at the garden site.
Humboldt County has a different set of guidelines, verbally stated by Sgt. Mike Downey of the Garberville substation, Sgt. Steve Knight of the Drug Enforcement Unit and Terry Farmer, DA. Patients are allowed to grow ten medicinal plants and possess one half pound of processed marijuana. They suggested that patients make the garden available for inspection by deputies. Several patients followed this procedure and successfully grew medical plants. CLMP received a call from a Humboldt resident who came home to discover the door on her small greenhouse broken off. Inside the greenhouse her six medicinal plants remained with the posted recommendation. She found ATV tracks leading from the back of her property to her greenouse door. CAMP was operating on the adjoining property, causing her to believe that law enforcement officers broke her door.
Trinity County has no guidelines for 215. The dispatcher at the Trinity Sheriff's office said their interpretation allows a person a medical defense in court. We learned from the experience of B.E. Smith, a resident of Trinity County, that despite Trinity County's interpretation, the federal government allows no medical defense in court.
At the state level, Attorney General Bill Lockyer created a 215 Task Force composed of law enforcement officers, medical marijuana advocates, and patients; about 30 people in all. The Task Force met several times in an effort to clarify the 215 law. One result was a recommendation for a voluntary registration system.
The work of the Task Force resulted in a bill, SB 848, sponsored by Sen. John Vasconcellos (D-San Jose). The original bill created a voluntary system whereby patients and their caregivers could obtain an identification card through their county Health Departments and the State Dept. of Public Health Services, providing immunity from arrest for possession, transportation, delivery, or cultivation of medical marijuana, as reported by Dale Gieringer, CalNORML Coordinator. The Task Force endorsed qualified persons to collectively or cooperatively cultivate medical marijuana. Gov. Davis' office announced opposition to the Task Force recommendations and would likely veto Senate legislation that sought to implement them.
Sen. Vasconcellos added an amendment to the bill which would have required physicians' recommendations for medical marijuana to be reported to the state. Gieringer said, "Medical marijuana advocates are opposed to mandatory reporting requirements. Most legal experts agree that compulsory registration would be unconstitutional on two grounds. First, it would restrict patients' 215 rights under the state constitution. Second, it would violate patient's Fifth Amendment rights against self-incrimination under federal law." SB 848 did not make it through the legislative process in the last session.
The CHP in Humboldt County does not acknowledge 215 patient rights. Sgt. Dale Cannon responded to a caller's question on the October 29 CLMP show aired on KMUD that the Highway Patrol's general policy is to confiscate and process any marijuana found, as if there is no 215 law. The DA's office decides whether to prosecute or not. The CHP would like to have a mandatory ID system but as the caller pointed out, such a system would violate a person's Fifth Amendment rights.
Three years have passed since the passage of Prop. 215 and confusion reigns on the issue of patient rights. Many patients are in jail or facing trial because of this confusion.
The federal government is steadfast in its opposition to medical marijuana. In 1998 the citizens of Washington, DC voted on a ballot initiative to legalize medical use of marijuana in the District of Columbia and prevent medical marijuana patients from being sent to prison. After the election the results of DC's medical marijuana initiative were kept secret for ten months. Congress passed a law introduced by Rep. Bob Barr (R-GA) that prohibited the DC government from spending any funds to count or certify the results of the medical marijuana vote - not even the $1.74 of staff time it would have taken to push the button and have a computer print them out. Ten months later a federal judge ruled the Barr amendment unconstitutional and ordered DC election officials to count and certify the vote. The results showed that 69 percent of DC voters had voted yes for medical marijuana.
In September of this year a panel of the Ninth Circuit US Court of Appeals ordered US District Court Judge Charles Breyer to consider modifying his injunction against the Oakland Cannabis Buyers cooperative so as to permit distribution of marijuana to patients who have a medical necessity for it. The decision was the first appellate ruling to seriously limit the federal government's power to prohibit marijuana. California Attorney General Bill Lockyer sent a letter to US Attorney General Janet Reno urging her to not file a petition to the Ninth Circuit Court of Appeals seeking a rehearing of the Oakland Cannabis Buyers Club case. The appellate decision as it now stands calls upon the District Court to reconsider its ruling against the assertion of a medical necessity defense in cases of medicinal use of marijuana. However, during the week of October 29 the Justice Department asked the Ninth Circuit Court to reconsider the recent ruling which had found that the government had offered nothing to contradict "evidence that cannabis is the only effective treatment for a large group of seriously ill individuals".
CGU California Insurance Co. reimbursed a 71-year old medical marijuana patient $6500 for thirteen marijuana plants killed from lack of watering after being seized eleven months earlier. The Sacramento DA's office dismissed due to lack of evidence charges against Robert DeArkland of cultivation of marijuana and possession of marijuana with intent to sell. DeArkland then filed a claim with CGU which insures his home, for the damage to the plants and the door which sheriff's deputies broke down during the raid. The insurance adjuster placed a value of $20,500 on the plants if they had been mature. Because the plants were not mature, CGU sent DeArkland a check for $6500 ($500 per plant) which was the maximum payment allowed under a shrubbery clause in the insurance policy. Previously State Farm, the nation's largest home insurer, paid a Washington claimant for his stolen marijuana after the company received a doctor's documentation that the marijuana was for medicinal purposes. "It's just one more indication that marijuana is being recognized as a legal substance in appropriate uses", said Dale Gieringer.
The week of October 18, Texas Governor George W. Bush announced that although he does not support the legalization of marijuana for medical use, he supports a state's right to decide to allow the medical use of marijuana. President Clinton later told reporters he agrees with Bush's statement, commenting that the Republicans have gone too far in trying to block the medical marijuana initiative in Washington DC. Although Bush did not directly comment on the situation in the District of Columbia, his statement came days after Clinton vetoed the District's $4.7 million budget, in part because of a provision to overturn the medical marijuana law.
Bush's position of opposing marijuana but saying states should decide is unique among presidental contenders. Under President Clinton and the Republican congress, the federal court has deemed to be beyond its power stopping six states and DC from implementing the will of their voters on the issue. And there are more statewide medical marijuana initiatives in the pipeline. George W. Bush, with his record of advocacy for punitive drug laws in Texas, on this issue has found a balance which has eluded the national elected officials of both major parties as they have struggled to stem the tide of public opinion. Marijuana hasn't killed a single patient in more than 4000 years of medicinal use. If patients truly believe that it will help, why make a federal issue out of it?
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