ASA Files New Arguments in San Diego Case

This week, patients throughout California along with the city of San Diego filed a brief incorporating two new legal arguments that oppose San Diego County’s attempt to defy and overturn California state law.  Representing the medical marijuana patients of California, ASA’s Chief Counsel, Joe Elford filed the brief with the intent to highlight the recent California Court of Appeals decision in Kha vs. Garden Grove, which was released in late November of this year. San Diego County is awaiting a decision in their appeal, which was filed in early February.

San Diego County filed a lawsuit in February 2006 challenging the state requirement to implement an identification card program for qualified medical marijuana patients and their primary caregivers.  In December 2006, San Diego Superior Court Judge William Nevitt, Jr. ruled that there is no “positive conflict” between federal and state law, affirming the sovereignty of state law. The Counties of San Diego and San Bernardino appealed in February.

ASA and the City of San Diego filed the amicus, “friend of the court,” brief citing the Kha decision. Since San Diego County’s main legal argument is that federal law preempts state law, incorporating the Kha decision in this recent brief has the potential to have an major impact in the lawsuit.  The California’s Fourth Appellate District, which heard the Kha case, is the same appellate court that will hear this case. In the November 28th ruling in City of Garden Grove v. Superior Court of Orange County, the court held that state law was neither “preempted” nor “superseded” and stated further that, “it is not the job of the local police to enforce the federal drug laws…”

Read ASA’s press release about the brief here.

DEA Raids Los Angeles Dispensary

Herbal Nutrition Center in Los Angeles was raided yesterday afternoon by DEA agents.  The collective was ransacked by agents, but no one was arrested. DEA agents seized medicine and vandalized displays and the collective’s surveillance system.  As a result of the raid and the upcoming holidays the collective will be re-opening it’s doors on January 2, 2008. Thank you to all that came out to show your support.  If you haven’t signed up for ASA’s raid alert text messaging system, do so today at: www.AmericansforSafeAccess.org/RaidAlert

Read a report about the raid from the collective’s operator on ASA’s forums at: http://www.safeaccessnow.org/punbb/viewtopic.php?id=642
 
Special Announcement: Tom Kikuchi has Moved to a Different Facility

ASA has been alerted that recently convicted Tom Kikuchi has been moved has been taken from Dyer Detention Center.  Sarah Armstrong, longtime supporter and caretaker for victims of the war on medical marijuana reports that, “he feels this is a temporary situation, and that he will soon be shipped away to somewhere else, they will not tell him where.”  Sarah has also reported that Tom has asked that people hold up on cards and letters until he can ascertain how long he will be at this federal facility.  ASA will keep you updated as news comes in.

Tom Kikuchi, co-defendant along with Stephanie Landa and Kevin Gage, was sentenced only a few weeks ago to two years in a federal prison for violating the conditions of his federal supervised release. Read Vanessa Nelson’s article(s) on Tom Kikuchi at: http://www.medicalmarijuanaofamerica.com/content/view/166/111/

There’s a great online presidential forum that has asked 10 questions to each of the presidential candidates. Question #3 asks the candidates how they feel about medical marijuana, whether they would stop the DEA raids, and if they would change the laws. So far, one Republican and four Democrats have answered the questions. Here are there answers:

Mike Huckabee does a great job at dodging the question and even claims that the way to go about this would be for advocates to just change the laws (as if we weren’t trying, and as if Huckabee would have no influence over this if he was president):

Mike Gravel dodges the question in a completely different way, using the opportunity to bash the war on drugs and talk about broader decriminalization of marijuana:

Dennis Kucinich probably does the best job of answering the question directly, clearly stating that he would end the raids and that medical marijuana should be available to those who need it:

John Edwards states that he would end the DEA raids and ties medical marijuana into the broader issue of the Bush administration’s neglect of science, in favor of politics:

Barack Obama also voices support for medical marijuana, saying that if it’s safe it should regulated like other prescription drugs, though he takes jabs at patients who grow their own medicine:

So what do you think? Who dodged the question? Who answered it the best? Did any of these answers change who you’re going to vote for?

Dozens of Patients and Activists Protest DEA in Support of Tainted, Inc.

Today, dozens of Bay Area activists gathered at the Oakland Federal Building in protest of the recent raids on several Tainted, Inc. facilities and the arrests of four employees. The “Holiday Party Protest,” commenced with Tainted operator and ASA activist, Michael Martin, dressed in a Santa Claus costume singing holiday carols. Martin then gave a compelling speech, presenting the DEA with a selection of scientific research which proves the efficacy of medical marijuana, and a Grinch plush doll. Referencing the tale of How the Grinch Stole Christmas, Martin encouraged the DEA to have a change of heart, as the Dr. Seuss story says. The protest continued with patient activist, Jacqueline Patterson, speaking about the importance of medical marijuana for patients, and Dr. Frank Lucido, echoing her sentiments.

The Tainted, Inc. defendants’ court hearing has been postponed to January 29th. Bay Area activists and ASA plan on attending for court support. We will keep you updated on the hearing’s date and location in future alerts. Read ASA’s press release about the DEA’s raid on Tainted here.  For more information on what you can do to support the defendants, visit www.FreeTainted.com. 
DEA Asset Forfeiture Letters Reach Northern California; Activists Mobilize

This week, the DEA’s newest tactic of shutting down access for patients reached Northern California. Several Northern California collectives’ landlords received asset forfeiture letters from the DEA. In these letters, the DEA threatens to seize the property of the innocent third-party landlords for allowing medical cannabis collectives to operate in their properties. While this is a concerning development, ASA is working in coalition with Drug Policy Alliance, Marijuana Policy Project, California NORML, and other activists and leaders to ensure that andlords, patients, and providers are protected.

We will need the grassroots’ support and actions in the upcoming weeks. Please stay alert, as the coalition will be calling on activists to take action to ensure safe access in California.

Court Denies Appeal for Oakland Cannabis Buyers Cooperative

This week, the U.S. Ninth Circuit Court of Appeals rejected the Oakland Cannabis Buyers Cooperative’s oral arguments, affirming the U.S. government’s injunction. This decision does not change the current situation for medical cannabis dispensaries in California. Read more about the decision, reported by CBS 5: http://cbs5.com/local/medical.marijuana.oakland.2.610402.html

DEA Seizes Taxes from CA Board of Equalization
From Dale Gieringer, Executive Director, California NORML

DEA raids on California’s medical marijuana dispensaries are costing the state’s taxpayers millions of dollars in lost revenues, according to records collected by California NORML.

The DEA has not only closed facilities that were paying millions of dollars yearly in sales taxes, but also seized as much as $450,000 in sales tax payments that were in transit to the state Board of Equalization. Among them was a $350,000 electronic payment to the BOE from the Compassion Center of Alameda County, which the DEA seized from the bank on October 30th. Read the rest of the story>>

For years there has been harassment against medical marijuana patients through the confiscation of their medicine, and, until now, there had been no clear statement on this by the appellate courts. On Wednesday, this changed.

In City of Garden Grove v. Superior Court, a unanimous panel of three judges on California’s Fourth Appellate District issued a 41-page published opinion, which made clear that all superior court judges across the state must return confiscated marijuana to qualified marijuana patients who demonstrate that they are entitled to possess it under California law. The opinion is written by the Honorable William Bedsworth, whom many consider the “Literary Jurist.” It has many quotable passages.

The opinion starts out with a noticeable description of the issue presented — “We confront here the facially anomalous request that we approve state confiscation of a substance which is legal in the circumstances under which it was possessed.” I take this to mean that the court is stating that it will not condone police seizing marijuana that is possessed legally under California law. In other words, the police should not have taken Felix Kha’s marijuana in the first place.

The court, then, treated seized medical marijuana just like other legally possessed property taken by the police and found that “[b]ecause Kha is legally entitled to possess it, due process and fundamental fairness dictate that it be returned to him.” There would not be an exception to these constitutional principles for medical marijuana patients. Courts must return medical marijuana to qualified patients.

But what about federal law, you wonder? Well, federal law expressly contains an exception to its marijuana laws for law enforcement officers performing their functions. 21 U.S.C. Section 885(d) provides that “no civil or criminal liability shall be imposed [under the federal Controlled Substances Act] upon any . . . duly authorized officer of any State . . . who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.” Thus, as did a unanimous court of appeals in Oregon, the Fourth Appellate District held that the courts and police are immune from federal drug laws for returning medical marijuana. Law enforcement’s reliance on federal law in refusing to do this is misplaced.

The court further explained:

By complying with the trial court’s order, the Garden Grove police will actually be facilitating a primary principle of federalism, which is to allow the states to innovate in areas bearing on the health and well-being of their citizens. Indeed, “[o]ure federalist system, properly understood, allows California and a growing number of States [that have authorized the use of medical marijuana] to decide from themselves how to safeguard the health and welfare of their citizens.” [citation] The [Compassionate Use Act] and the [Medical Marijuana Program Act] are a clear manifestation of that decision-making process.

The feds may do what the feds will do in enforcing their own laws, but the people of California are entitled to decide to tread a different path, which requires the return of medical marijuana wrongfully seized by the police.

The City of Garden Grove was joined in its resistance to court-ordered return of medical marijuana by several amici (friends of the court), which included the California Peace Officer’ Association and the California District Attorneys’ Association. (The Attorney General, on the hand, filed a brief supporting our side.) The court addressed several of their claims:

Amici for the City also claim that ordering the return of Kha’s marijuana is ill advised as a matter of public policy because local police are held to a high moral standard, they often cooperate with federal drug enforcement efforts, and they are generally charged with enforcing and administering “the law of the land,” which includes federal law. We appreciate these considerations and understand police officers at all levels of government have an interest in the interdiction of illegal drugs. But it must be remembered it is not the job of the local police to enforce the federal drug laws as such. For reasons we have explained, 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.

The court emphasized to the police that medical marijuana patients are not criminals:

Amici argue the police should not have to return Kha’s marijuana to him, even though he is qualified to use the drug for medical reasons under California law. Characterizing Kha as a “criminal defendant,” amici claim the CUA only provides him with a “defense” to certain offenses and does not make his possession of medical marijuana “lawful.” But Kha is clearly not a criminal defendant with respect to the subject marijuana. Since the prosecution dismissed the drug charge he was facing, he is nothing more than an aggrieved citizen who is seeking the return of his property. The terms “criminal” and “defendant” do not aptly apply to him.

For the first time in a published opinion, a California court clarified to the local police that it is state law, not federal law, they should be enforcing. It was a pleasure to read this thoughtful, well-reasoned decision which strongly vindicates the right of medical marijuana patients everywhere. It will be cited often.

For the briefs filed in the case see here.

On Saturday, December 1, to commemorate Worlds AIDS Day, Democratic Presidential Candidate, New Mexico Governor Bill Richardson unveiled his HIV/AIDS policy platform.  In addition to recognizing the need for a National AIDS Strategy, the Governor’s plan includes a provision that would permit the use of medicinal marijuana to help people living with HIV/AIDS improve pain and symptom management.

The anti-emetic and analgesic properties of cannabis have been particularly useful to HIV/AIDS patients.  People living with HIV/AIDS have long used cannabis to help with symptoms of HIV related illnesses ranging from wasting and loss of appetite to adherence to medications.  Consequently, it is estimated that as many as 1 in 4 AIDS patients use cannabis for medical purposes.

Earlier this year, the journal Neurology published the results of a clinical trial indicating that smoked marijuana can alleviate painful, peripheral HIV/AIDS-related neuropathy.  Research also shows that access to cannabis may improve health care outcomes for people living with HIV/AIDS.  For example individuals who use cannabis in conjunction with their antiretroviral therapy are approximately 3.3 times more likely to remain on their prescribed drug therapies than those who do not use cannabis.

The Bush Administration has failed to acknowledge the growing body of evidence which demonstrate that marijuana has medical value.  In fact, neither the Clinton nor the Bush Administrations  have ever undertaken any effort to review or fully implement the recommendations of the 1999 Institute of Medicine (IOM) study, Marijuana and Medicine-Assessing the Science, which acknowledged that “For patients such as those with AIDS or who are undergoing chemotherapy and who suffer simultaneously from severe pain, nausea, and appetite loss, cannabinoid drugs might offer broad-spectrum relief not found in any other single medication.”

In contrast, California and 12 other states, including New Mexico, have passed laws that authorize the use of cannabis by qualified patients who possess a recommendation from their physicians.  Americans for Safe Access is encouraged by Governor Richardson’s sensitivity to the intersection of medical marijuana and HIV/AIDS.  We hope other Presidential candidates will take note, and follow his lead.