By Degé Coutee
Early this month House Judiciary Chair Congressman John Conyers, Jr., (D-MI) sent a letter to the acting head of the Drug Enforcement Administration Michele Leonhart (her permanent appointment appears eminent) questioning the administration’s tactics with respect to raids and threats of asset forfeiture in California. Grassroots medical cannabis advocates worked months to get Congress to take action on this issue.
On December 7, 2007, Axis of Love San Francisco and Patient Advocacy Network held an emergency press conference outside House Speaker Nancy
Pelosi’s district office in response to the ongoing threats and harassment by the DEA. Both organizations provide education, advocacy and social service programs to medical cannabis patients throughout the state. Frustrated elected officials were prepared to go on record stating that Speaker Pelosi failed her constituency by not acting sooner.
Advocates had been diligent since January 17, 2007, when 14 dispensaries were raided simultaneously in Los Angeles, to educate the Speaker’s office about the seriousness of the DEA’s continued efforts to undermine a movement that started in Pelosi’s district. In July of 2007, the first landlords received the now well-known DEA threat letter informing owners that properties were under ongoing investigation, that medical marijuana dispensaries are known to be on the premises and their failure to do anything about it could result in asset forfeiture and imprisonment. Under the fear and pressure, dispensaries started closing rapidly. Since the letters were not threatening landlords in San Francisco yet, Pelosi’s staff informed the directors of Axis of Love and PAN that their office did not see a need to act.
On December 5, 2007, the DEA issued its press release stating that every landlord renting to a dispensary in Northern California would receive the threat letter and the emergency press conference was called. Knowing that local officials planned to go on record condemning Speaker Pelosi’s lack of action and patients were organizing a two-week long vigil for the dead and imprisoned at the hands of the DEA, Pelosi’s office promised Axis of Love and PAN that a statement would be read by the Speaker’s staff at the press conference. However, the statement did not come from Speaker Pelosi, it came from Congressman Conyers, Chair of the House Judiciary Committee. He stated, “I am deeply concerned about recent reports that the Drug Enforcement Administration is threatening private landlords
with asset forfeiture and possible imprisonment if they refuse to evict organizations legally dispensing medical marijuana to suffering patients. The Committee has already questioned the DEA about its efforts to undermine California state law on this subject and we intend to sharply question this specific tactic as part of our oversight efforts.”
Photo: Degé Coutee meets with LA City Councimember Dennis Zine to discuss safe dispensary regulations.
As no good deed goes unpunished, Shona Gochenaur, executive director of Axis of Love and Degé Coutee, president of PAN sought to insure oversight efforts happened and immediately began working with staff of the Judiciary Committee in Washington, DC. Additionally, Shona and Degé sought the active support of local elected officials and soon Senate Joint Resolution 20 was on the floor. City councils across the state started presenting resolutions supporting Congressman Conyers statements, condemning the DEA and demanding immediate action from Congress. All state and local resolutions and statements from California mayors have been presented to the Congressman Conyers. The pressure from patient advocates prompted him to suggest a letter to the acting head of the DEA and requested advocate input on the line of questioning.
Although not all of the advocates’ questions appear in the final letter, the important matter of asset forfeiture is in the forefront. The letter asks if the DEA is going to take action against property owners, patients and caregivers and if this is a good use of their resources. The letter seeks to learn the status of the property seized thus far and the resources spent on raids. The letter also inquires about the DEA’s willingness to work with states that have passed their own medical cannabis laws and includes copies of the all the resolutions being passed in California condemning the DEA and demanding Congressional action.
It is not anticipated that the DEA is going to respond favorably if at all. However, it is the first strong step in opening oversight hearings. The deadline for the DEA to respond is approaching quickly – Axis of Love San Francisco and Patient Advocacy Network are prepared to for the
next step.
To learn more, visit www.CannabisSavesLives.com
By William Britt, Exec. Dir. Assn. of Patient Advocates 5-14-08
“We do not believe the federal drug laws supersede or preempt Kha’s right to the return of his property.” In examining this issue, the Court turned to section 11473.5, the statute governing the disposition of controlled substances in cases that have been dismissed before trial. It orders destruction of controlled substances, and paraphernalia unless the court finds that the items were lawfully possessed by the defendant.
Police cannot retain a person’s property without running afoul of basic constitutional considerations. Particularly, the Fourteenth Amendment which provides that no state shall “deprive any person of life, liberty, or property, without due process of law.
The courts have ruled that the terms “criminal” and “defendant” do not aptly apply to Kha and other qualified medical cannabis patients. Furthermore, our Supreme Court has ruled that when applicable, the CUA “renders possession and cultivation of . . . marijuana noncriminal for a qualified patient or primary caregiver.” (People v. Mower, supra, 28 Cal.4th at p. 471.) The possession and cultivation become “no more criminal . . . than the possession and acquisition of any prescription drug.”
The fact is, “the structure and limitations of federalism” allow the States ‘“great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons. This includes the power to decide what is criminal and what is not.”’ (This ruling was used in Gonzales v. Oregon (2006) which stopped a federal ruling aimed at undermining Oregon’s physician-assisted suicide law.) “Affording the states broad authority on these matters promotes innovation by allowing for the possibility that ‘a single courageous State may, if its citizens choose, serve as a laboratory; and try novel, social, and economic experiments without risk to the rest of the country.”
“State courts can only reach conduct subject to federal law if such conduct also transcends state law, which in this case it does not. To the contrary, Kha’s conduct is actually sanctioned and made “noncriminal” under the CUA.” Therefore, any “‘consideration of issues arising under the Supremacy Clause “start[s] with the assumption that the historic police powers of the States [are] not to be superseded by . . . a Federal Act unless that [is] the clear and manifest purpose of Congress.”’
The Controlled Substance Act (CSA) was enacted by Congress to combat recreational drug abuse and curb drug trafficking, not to regulate the practice of medicine, a task that falls within the traditional powers of the states.
Generally, distribution of a controlled substance is prohibited under 21 USC. § 841(a)(1), but that section does not apply to persons who regularly handle controlled substances in the course of their professional duties.
Indeed, every law prohibiting possession, cultivation, transportation, sales etc. has a provision that states “except as authorized by law. This creates immunity for state officers who handle or even use cannabis in the course of their duties.
The CUA creates the same immunity for qualified patients in California. “It is not the job of the local police to enforce the federal drug laws as such.”
Editor’s note: Just before this issue of West Coast Leaf went to press, the Appeals Court ruled section HS11362.77 to be an unconstitutional amendment to Prop 215. That decision is likely to be appealed by the Attorney General. The ultimate effect of all this remains unknown, so we present the following discussion.
By Eric Shevin Attorney at Law
With the passage of Senate Bill 420, California’s medical marijuana laws were refined and clarified in many respects. The additions to the law were numerous and sought to clarify the rights of patients and caregivers with regard to a variety of issues that were not included in the original version of the Compassionate Use Act (Prop 215). The passage of SB 420 created several sub-sections to the Health and Safety Code (“HS”) in California within the Compassionate Use Act (“CUA”). When read in its entirety (HS11362.5, et. seq.), it is clear that the intent of SB 420 was to provide further guidance and protection for patients, their caregivers and Physicians, such as providing for a State patient ID card as well as protections for patients who associate through collectives and cooperatives.
Of all the changes to the CUA, section HS11362.77 has received the most attention. This section provides that each patient may statutorily possess eight ounces of dried cannabis in addition to growing 12 immature plants or six mature ones. Patients may possess and cultivate more than these amounts if needed, but a specific medical recommendation or local policy is required authorizing the excess quantities.
With this step forward, it appears that we may have taken a small step back as well. It seems that section 11362.77 failed to address a patient’s right to possess concentrated cannabis products like hash, kief, tinctures and oils as well as edibles by limiting possession to eight ounces of dried mature cannabis flowers “or conversion.” A literal reading of this section implies that only dried cannabis may be possessed without a more specific medical recommendation. This is creating a tremendous conflict for medical dispensaries and their patients. Most dispensaries sell many concentrated cannabis products including edibles and do not require a specific recommendation from a patient in order to purchase these items. Most patients believe they are complying with the CUA when they purchase these items, when in fact, this may not be the case unless they possess a specific recommendation for concentrated cannabis products and edibles.
Prior to the passage of SB 420, the CUA provided equal protection without exception for cannabis and concentrated cannabis and the California Attorney General’s office authored an opinion verifying this fact. Since the passage of SB 420, the issue remains unresolved. An argument exists that concentrated cannabis and edibles are contained within the definition of marijuana within the Health & Safety Code. Section 11018 states that the term “Marijuana means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin,” then it makes certain exceptions for industrial hemp fiber, sterilized seeds, etc. When restricted by the term dry however, it becomes less clear that all concentrated cannabis fits within this definition.
What can be done to address this issue? Patients should inquire of their Physicians to add the words “and concentrated cannabis products, including edibles” to their recommendations following their indication for marijuana. This would appear to cure the problem until the Court of Appeal resolves the issue; however the issue is not presently before the Court so there is no telling if it will ever be clarified. My office presently has a similar issue before the Court of Appeals that is about to be decided in order to resolve that the manufacture of concentrated cannabis is controlled by the laws involving the cultivation of cannabis and therefore protected conduct under the CUA. Stay tuned for the Court’s ruling on this issue.