In a not so surprising decision, the Fourth Appellate District Court of Appeal held in a unanimous 39-page published decision that California’s medical marijuana identification card program is neither preempted by federal law nor an unconstitutional amendment of Proposition 215. The decision sends a clear message to rogue counties like San Diego and San Bernardino that they cannot use federal law as an excuse to disregard California’s medical marijuana laws. Further, the decision lets all states know that federal law is not an impediment to states passing their own laws protecting medical marijuana patients.

The decision comes after more than two years of litigation starting in the Superior Court and moving up to the court of appeal. We won at both levels. On our side, opposing the challenge from the Counties of San Diego and San Bernardino, were the State of California, Americans for Safe Access and the ACLU. I argued the case for ASA on behalf of the patient-intervenors.

The decision was not surprising because the Justices asked only one or two questions of the Attorney General and none to the ACLU or me. On the other hand, a court would likely ask many questions if it was going to strike down a state law based on federal preemption.

ASA intervened to litigate this case at both levels to ensure that the perspective of medical marijuana patients was communicated to the court.

Last month, reason.tv released a video about Charles Lynch and one of the patients he served before being raided by the DEA. Now that the trial has gotten underway, reason.tv has released a video update on the trial.

Check it out:

For a first person point of view, take a look at Charles Lynch’s blog post about his trial.

The following is by Charles Lynch, a medical marijuana provider currently on trial in federal court:

Monday July 28, 2008

Lynch received an email from a supporter today that mentioned the following information to him:

“…I recently came across the fact that the US Govt. holds a patent on the medicinal use of cannabis (patent #6,630,507) for the prevention and treatment of a wide variety of diseases including stroke, trauma, auto-immune disorder, HIV dementia, Parkinson’s and Alzheimer’s. It was based on research done at the NIH, and the assignee is the US Dept. of Health and Human Services. This patent, awarded, not by, but TO the US Government completely contradicts the official stance that cannabis has no current medical applications.”

This was certainly a surprise to Lynch as he thought the federal government didn’t see any medicinal purpose for the use of marijuana, yet they have a patent on it? Lynch’s attorneys confirmed this information and will comment on the discovery in the near future.

Before deliberations started today the prosecutor demanded the jury be queried regarding the article in the LA Times on Saturday. The judge agreed and asked the jury if anybody saw the article or read it. Two juror’s raised their hands and they were led off to a side bar to talk with the attorneys, the judge and the prosecutor. Both jurors said they saw the article but did not read it as they knew it was about the case. The judge said ok and the case continued on.

One interesting note for the day is that Lynch was now being allowed to accompany his attorneys to side bars with the judge. Side bars are essentially when the Defense Attorneys, the Prosecutor and the Judge meet on the side of the Judges desk and discuss items on the record that they don’t want the jury to hear. Lynch stood right next to the judge during the side bars and will continue to do so throughout the remaining of the trial.

Also today the prosecution continued its case against Lynch by bringing in more and more Sheriff’s deputies and detectives from the San Luis Obispo County Sheriff’s Department. One officer, John Blank, had infiltrated the dispensary and had a fake driver’s license and a real doctor’s recommendation issued to the fake name. The prosecutors inadvertently opened the door to cross examine the informant on how he got into the dispensary using his ‘physicians statement’, his fake id and lying when he filled out membership and caregiver agreement forms. The jury also heard how the informant tried bringing in an underage 17 year old without the proper paper work and he was denied access. Just a friendly reminder that local law enforcement are sworn in to uphold state law, not federal law. Also it seemed unfair that Lynch cannot mention state law yet here we have state officers who are testifying against him in federal court.

Other Sheriff’s deputies and detectives mentioned how they had been casing the place writing down patients license plate numbers and videotaping them. Also the Sheriff’s talked about how they followed people around trying to widen a sort of ‘conspiracy’ case against Lynch. They also talked about a giant white bag that Lynch would carry out of the shop every two days which if they would have checked they would have found recycled cans from the dispensary Lynch transported to his house. Also they talked about a giant box that Lynch moved into the dispensary one day which if they had asked they would have probably found a security system he was working on. Also they talked about an employee who went to the post office one day with a box which if they had seized it they would have found a defective hard drive USB case that was being returned.

Two DEA agents testified against Lynch namely Special Agent Burkdohl and Special Agent La Rock. Burkdohl talked about the dispensary and showed pictures of ‘the marijuana’, ‘the board’ and the ‘marijuana plants’. La Rock talked about the back pack that Lynch carried around that was ‘stuffed with cash’ and the small amount of medication he had at his house. The prosecutor showed a picture of Lynch’s house and check book trying to make it look like he was living the life of the Rich and Famous. Lynch has owned the house he has been living in for 4-5 years before he even opened the dispensary.

Tomorrow, Tuesday July 29, 2008 it is thought the prosecutor will end their case and Lynch will begin his defense. Lynch will be testifying and the defense will have some supporters who will be testifying on his behalf. Lynch was mum on the details of his testimony as even the prosecutors don’t know what the defense has planned.

Lynch’s Attorneys did a fantastic job in managing the expectations of the court and in cross examining the government’s witnesses. Also members of the community and media were there in support of Lynch.

***

Lynch’s case has received significant attention in the media and on-line. Reason TV has been a strong supporter of Lynch, with its documentary short Raiding California and its video blog during the trial. Also, the LA Times and the San Luis Obispo New Times have both covered Lynch’s trial.

A new website was launched today that provides valuable information on a variety of social issues facing Americans. OpposingViews.com facilitates debates on issues ranging from the death penalty to global warming. The debate on medical cannabis begins with the question, “Should medical marijuana be federally legalized?”

Millions of Americans take prescription drugs to treat a plethora of illnesses and symptoms, but not all drugs are created equal. The question of whether or not to consider marijuana a viable medical treatment remains a hot button issue. In states like California, medical marijuana clubs have flourished despite their federal illegality. Should the federal government allow states to make their own decisions, or is marijuana nothing more than a dangerous narcotic?

So far, the experts that have weighed in as proponents are Americans for Safe Access and the Marijuana Policy Project. The opponents are Eric Voth, MD, with the Institute on Global Drug Policy and the Drug Free America Foundation.

As the viewer, not only are you able to learn new facts and information, but you can also “vote” and provide comments. I urge you to visit the site and provide your input today!

ASA argues that medical marijuana should be federally legalized for a number of reasons: a) cannabis is a safe and effective medicine, b) the public and medical community supports medical cannabis, c) twelve states have adopted medical cannabis laws, d) the federal government is obstructing medical marijuana research, e) marijuana medicines are legal in other countries, and f) Americans who are ill deserve the most health options possible.

Don’t take my word for it, though. Read the Washington Post article on the launch of this new website, but better yet, visit OpposingViews.com today to vote and provide your valuable input.

DEA Raids Los Angeles Dispensary

On Tuesday, the DEA raided Total Relief Center in Los Angeles. Employees were detained for a long period of time, but no arrests have been reported. This raid followed a DEA raid last week in Long Beach, at Long Beach Organics. Neither of these raids could be confirmed soon enough to activate ASA’s emergency response system.

To help keep ASA informed and to activate the response system, please call the ASA office at 510-251-1856 if you hear about a raid occurring.

Local Medical Marijuana Regulation Updates: Arcata & Fortuna

Arcata Moves forward with Regulation of Medical Cannabis Dispensaries

This month, dispensary operators and city staff in Arcata began meeting to draft land use codes for medical cannabis dispensaries. City staff plan to use information gained from these meetings to draft an ordinance that could be ready for the the City Council to approve as early as next month. The city’s community development director, Larry Oetker, feels positive about the process and said, “I don’t run a medical marijuana dispensary. The goal is to bring in the people that run that industry and try to develop some standards that reflect the day to day operation of that industry.”

For more information, please read the article in The Times Standard.

Fortuna Bans Medical Cannabis Dispensaries

This week, the Fortuna City Council finalized its ban on medical cannabis dispensaries. Several residents spoke out against the the ordinance and others spoke in favor of it, but ultimately, the council decided to permanently ban dispensaries in the city.

For more information, please read the article in The Humboldt Beacon.

We have seen many big wins for medical cannabis patients in California in recent years. ASA won important court victories against the California Highway Patrol and City of Garden Grove, which prevent the wrongful confiscation of medicine. In Malibu and Orange County, ASA helped persuade elected officials to reject bans on medical cannabis facilities in favor of sensible regulations. And in Sacramento, ASA is driving the medical cannabis agenda forward by sponsoring legislation to prevent workplace discrimination against patients.

The issue of medical cannabis is making progress in California, but that is not the story you see repeated in the media. From cable news to hometown papers, media seems convinced that California is out of control. Articles like the one in Saturday’s Chicago Tribune reinforce this perception. So do comments from some of our well meaning, but ill-informed allies in other states.

California pioneered medical cannabis reform in 1996, and that frontier spirit is still very much a part of the real-life experience of patients and providers here today. There are more medical cannabis doctors, patients, caregivers, growers, and providers here than anywhere else. The last three years have seen a tremendous expansion in the number of legal patients in rural and Southern California, a phenomenon that has challenged those regions’ peculiar brand of conservatism and generated a local backlash that piggy-backs on a national trend to question the wisdom of medical cannabis laws.

There has been a lot of media attention of late about the state of medical cannabis in California. Some of the concern is justified. A certain amount of recklessness and abuse exists here, and media reports focusing on that narrow aspect of our state’s medical cannabis program will no doubt influence the development of programs in other states and policy in Washington, DC. That has certainly been the case here in California, where City Council and State Representatives have been impacted by stories about lenient doctors, crime surrounding cannabis facilities, patients that do not “look sick,” and large scale commercial grow operations. But that impact has not always been bad. In some cases, concerns like those raised in the media lately have led to better policies at the local level.

These issues are real, but media coverage focuses disproportionately on stories of abuse, or perceived abuse, at the expense of telling the real California story: Proposition 215 works. California’s medical cannabis program is not only remarkable because it was innovative. It is also noteworthy because it has succeeding beyond expectations in putting medicine into the hands of patients who need it to treat serious illnesses. It is not unreasonable to suggest that most people who need cannabis in this state can obtain it. That is a fact that must not be overlooked. No other state has a medical cannabis law that has so effectively translated good intentions into a reality in the lives of so many sick people.

Advocates and policy makers in other states would do well to learn both what to do, and what not to do, from the California frontier. Research and experience teach us that sensible regulations reduce abuse and neighborhood complaints around medical cannabis facilities. ASA’s report “Medical Cannabis Dispensing Collectives and Local Regulation” shows the uniformly positive impact of regulations in cities and counties across the state. Unfortunately, few of our elected representatives took the voters mandate to develop a program for the safe and affordable access to medicine to heart back in 1996. Much of the controversy in California might be avoided in other states if state and local leaders move quickly to license and regulate access to medicine.

When considering the California experience, you must acknowledge that Proposition 215 is a shining example of voter-driven public policy succeeding against the odds. Where abuse exists, advocates, providers, patients, and lawmakers are moving to correct it. In Los Angeles, ASA and medical cannabis advocates are working hand-in-hand with Los Angeles Police Department veteran and Republican City Council Member Dennis Zine to champion regulations in a city that has seen both the largest proliferation of medical cannabis facilities – and the greatest federal pressure ever brought to bear against a community to eliminate safe access.

Federal interference is perhaps the greatest barrier to effective implementation of California’s medical cannabis laws. We cannot reach the voters’ goal of safe and affordable access for everyone who needs it if patients and providers must hide from federal persecution. Other states will struggle with this obstacle, too, until we finally succeed in harmonizing federal law with the laws of the states that are committed to medical cannabis. Advocates in every state can unite behind this common goal, regardless of the details of their individual programs.

The frontier for medical cannabis is moving east. Other states will soon grapple with the same issues of abuse and media bias that are so pronounced in California right now. This is all part of the process. We need to focus on our successes in the states as we engage the media and elected officials, and correct the problems as quickly and quietly as possible. The clock is ticking for this Administration and the anti-medical cannabis crusaders at the Department of Justice and Drug Enforcement Administration. We are going to win this battle and secure safe access in our communities. In the meantime, let’s learn both from the success of Proposition 215 and from its shortcomings in implementation that point towards a better path.

Berkeley Medical Marijuana Initiative Placed on the November Ballot

On Tuesday, the Patients Access to Medical Cannabis Act of 2008 was officially placed on the ballot. According to the Oakland Tribune,

It would eliminate limits on the amount of medical marijuana that could be legally possessed by patients or caregivers, establish peer review for medical marijuana collectives to police themselves and allow medical marijuana dispensaries to locate where permitted without a public hearing. The initiative originally called Measure R in 2004, failed by 191 votes, or less than half a percent of the ballots cast.

An Alameda County Superior Court judge nullified the results due to mishandling of a recount by Alameda County election officials, and ordered the citizen-sponsored medical marijuana initiative back on the ballot for a re-vote in 2008.

Advocates have formed a campaign committee and they will need help to pass this initiative. Look out for alerts in our weekly update to find out how you can get involved in this campaign to expand safe access in Berkeley.

Local Medical Marijuana Regulation Updates: Alameda, Fresno, & Del Norte

Alameda County Board of Supervisors Votes to Allow Edibles, Temporarily

On Tuesday, the Alameda County Board of Supervisors considered various amendments to its medical marijuana dispensary ordinance, which regulates dispensaries in the unincorporated areas of the county. On a 4-1 vote, the supervisors voted to allow the Board to permit a third dispensary in the future, since the one of the three permitted dispensaries in the county was shut down by the DEA last year. Advocates also won a huge victory when the supervisors voted to allow medical cannabis edibles to be sold at dispensaries for the next 120 days while a task force studies the issue. Thanks to all the patients and advocates who spoke out at this hearing – your voices made an impact on safe access in Alameda

Fresno County Board of Supervisors Votes to Delay Implementation of Medical Marijuana ID Card Program

On Tuesday, the Fresno County Board of Supervisors voted to delay implementation of the state ID card program until after the appellate ruling is issued in San Diego v. NORML, which is expected in September. Advocates who spoke out at the meeting did not turn away completely empty handed though – the supervisors instructed county staff to begin research and preliminary planning for the program. If the appellate ruling is positive, they will likely vote in September to implement the program. Thanks to Fresno ASA and Aaron Smith from MPP for all your hard work in the county!

Del Norte County Board of Supervisors Votes to Remove County Limits on Plants and Medicine

On Tuesday, the Del Norte County Board of Supervisors voted to remove county limits on how many plants and how much dried medicine a patient can possess. The current county guidelines, which will stay in effect until August 8, allow patients to grow up to 99 plants in a 100 square foot area and to possess up to a pound of marijuana. The decision to scrap the county guidelines came in response to the ruling in People v. Kelly, which ruled state limits were unconstitutional. This ruling is being appealed by the California Attorney General. Both law enforcement and patient advocates have expressed concern about the new law, as it leaves a wide amount of discretion to individual law enforcement officers.

California Senate Passes Resolution Calling for an End to DEA Raids

Yesterday, the California passed SJR 20 on a 24-15 vote. Introduced by Senator Carole Migden, this resolution urges the President and Congress of the United States to enact legislation requiring federal law enforcement to respect state medical marijuana laws, to cease raids of medical marijuana dispensaries that are operating legally under California and local law, and to return any assets seized from medical marijuana dispensaries and collectives to the states in which they are located.

This is a very exciting move forward for medical cannabis patients throughout the state.  If passed by the Assembly, this resolution will send a resounding statement nationwide saying to the Federal government that Californians are taking a stand and calling for an end to DEA attacks!

SJR 20 heads next to the Assembly. Since it is a non-binding resolution, the governor does not need to sign it.

For more information about the resolution, please visit www.AmericansForSafeAccess.org/SJR20

Mendocino Sheriff and District Attorney Will Not Enforce Measure B Plant Limits

Last week, advocates went to superior court, attempting to halt the implementation of Measure B. The measure, which passed in the June election, lowers the plant limits for medical marijuana patients from 25 plants to the state limit of 12 immature or six mature plants and eight ounces of dried marijuana. Attorneys for medical cannabis advocates argued in court last week that the measure should not be implemented because it conflicted with the recent appellate ruling in People v. Kelly, which struck down plant limits as unconstitutional.

Yesterday, Mendocino’s sheriff and district attorney announced that they would not implement the lower plant limits. However, in a change of policy, the limit of 25 plants will apply to each parcel, and not the number grown for an individual’s use. This means that collectives and cooperatives could grow no more than 25 plants total, regardless of how many patients they serve.

Advocates will continue to argue their case in court over the coming weeks, though their efforts may be effected by the expected appeal of the Kelly case by the Attorney General.

Please read the article in the Press Democrat for more details.