Last Thursday the LAT ran a story about the federal Drug Enforcement Administration Agency thugs raiding a medical marijuana dispensary. Included in the photo gallery was a photo of a long-haired guy with a pistol at his belt and a Blackwater T-shirt. (The Times later pulled the photo but it’s all over the blogosphere.) Does that mean the DEA is now hiring the private paramilitary outfit that the Iraqi government wants out of that country because of some shoot-first incidents to do their dirty work against sick people and states’ rights? Not necessarily, of course. Blackwater started as a state-of-the-art firing range/training facility for law enforcement people of all kinds, and it’s possible the guy just got a “cool” t-shirt at some Blackwater training session, or at some other event.

One may hope this kind of nonsense becomes a more prominent issue in the current election. Barack Obama has in the past said he would end raids against dispensaries in states with medical marijuana laws, but he hasn’t exactly made it a prominent campaign theme and he’s been known to change positions. It would be nice to see some reporters hold his feet to the fire on this one.

The 4th District Court of Appeal for California issued a published opinion today ruling that federal law does not preempt California’s medical marijuana law. San Diego County had filed a suit in Feb. 2006 challenging the validity of the state identification card program for medical marijuana patients, and also challenging the whole foundation of the state’s medical marijuana law, put in place by voters in 1996 through Prop. 215. The suit was rejected at the superior court level, but San Diego County decided to appeal it. Today the appeals court rejected that appeal, saying that federal law — the Controlled Substances Act — does not preempt California law, because the CSA itself “signifies Congress’s intent to maintain the power of states to elect to serve as a laboratory in the trial of novel social and economic experiments without risk to the rest of the country by preserving all state laws that do not positively conflict with the CSA.”

I’m not sure that really was Congress’s intent when passing the CSA, which updated previous drug laws, back in 1974. I do know that when some congressmen back then questioned the placement of marijuana on Schedule I, the most prohibitory of the four schedules, which disallows even medical use, they were told it was simply for convenience, that future placement would be determined scientifically rather than politically. Of course that never happened, even when the the Drug Enforcement Administration’s chief administrative law judge in 1988, after several years(!) of hearings, ruled that it was improper and frivolous to keep marijuana on Schedule I. He was simply overruled by the politically appointed DEA administrator. So much for federal government respect for science.

With this ruling — I certainly hope San Diego County won’t waste any more of its taxpayers’ money appealing it to the California Supreme Court — counties have no excuse for not implementing the medical marijuana patient ID card system mandated by state law. Orange County has taken some halting steps in this direction, but it’s unclear just where that process is.

Here’s a link to the 4th District’s decision, and to comments by Americans for Safe Access, a patient advocacy group. And just for good measure, the amicus brief from the city of San Diego, which disagreed with the county, and the apellate court’s decision in a Garden Grove case, in which the city was ordered to return confiscated cannabis to a legitimate patient. If you want a lot more detailed background, I can humbly (sure!) recommend my own book, “Waiting to Inhale: The Politics of Medical Marijuana,” although since it was published in 2001 it doesn’t have all the most up-to-date information. If you e-mail me I’ll arrange to sell you a copy at less than Amazon’s price.

 A little later this month, when the appropriations bill for the Justice Department comes up, the Hinchey-Rohrabacher amendment, pushed by Democrat Maurice Hinchey of New York and Republican Dana Rohrabacher of Huntington Beach, will be offered yet again. It would specify that no money could be used by the DEA to go after patients in states with medical marijuana laws. It should be a no-brainer for conservatives who claim to believe in states-rights, but in years past (of course) it has gotten little Republican support. It has, however, gotten more votes each year it has been introduced. It hasn’t received as much publicity as in some previous years (though here’s a Seattle Post-Intelligencer piece) but I would expect at least more votes for genuine compassion this year than last year. I’d love to see this issue inserted into the presidential race (Obama has expressed sympathy for the idea in the past), but with Obama wildly triangulating and “centering,” I expect he’ll be too cautious. Too bad.

California Atty. Gen. Jerry Brown has announced that he will challenge a recent appellate court decision that struck down guidelines passed by the legislature on the amount of cannabis bonafide patients can have in their possession. His plan is terrible on several levels and reflects the unfortunate nannyism all too many so-called liberals embrace. 

The first has to do with legality. As the appellate court correctly ruled, a law passed by the initiative process cannot be altered by the legislature, but only by a new initiative passed by a vote of the people. If the legislature doesn’t like an initiative, it doesn’t have the power to change it. Prop. 215 did not contain possession limits. From talking with the authors for my book, “Waiting to Inhale: The Politics of Medical Marijuana,” I know that this was not by accident or sloppy drafting but by design. Jerry Brown and some police may not like it, but their recourse is to write a new initiative, not to change it through legislation.

It could be argued that the limits contained in SB 420, which also set up the voluntary patient card program and was intended as orderly implementation by people sympathetic to medicinal marijuana, were suggested guidelines rather than legal limits. If that’s the interpretation, the patient for whom the appellate court ordered a new trial should still get one; his “crime” was that he had 12 ounces rather than 8 ounces.

Some police spokesmen claim that the lack of limits makes the police job difficult, but that’s mostly a cover for not wanting to implement the law at all. The California Narcotic Officers Association (marijuana is not a narcotic, by the way) still has pages on its Website arguing that “Marijuana is NOT a medicine.” That is simply unscientific nonsense. Or do you prefer the term “lie”?

The reason Prop. 215 contained no possession limits is because at the time it was written (1996) and still today, there isn’t reliable public information available as to how much cannabis is appropriate for various conditions. I’ve known patients who smoke 1 cigarette a day and some who smoke 10 or 12 and say they don’t get “high.” Because of federal prohibition there has been almost no decent scientific research on medical marijuana since the early 1970s (because the feds won’t let researchers have cannabis). However, the 1999 Institute of Medicine report made it clear that there’s an abundance of scientific evidence for marijuana’s therapeutic properties.

Prop. 215 had no legal limits to leave the system flexible — to let doctors and patients rather than cops, legislators or attorneys general decide. The enforcement “problem” can be solved very simply: Don’t arrest people with a physician’s recommendation.

RELATED POSTS:

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Upholding state medical marijuana law

Debunking new marijuana scares

The Los Angeles City Council will vote tomorrow on a resolution calling for an end to federal interference in California’s medical marijuana laws. Introduced by council members Dennis Zine, Janice Hahn and Bill Rosendahl, the resolution supports State Sen. Joint Res. 20 (Carole Migden), which urges Congress to enact legislation requiring the DEA to respect states with medical marijuana laws by ceasing raids on patients and dispensaries that are operating legally under local law — and to return any assets seized from those already raided.

Such a resolution won’t have legal force, but it will send a message. The message is expecially piquant given California’s budget crisis. Most medical marijuana dispensaries pay sales tax, and advocates estimate that they paid as much as $100 million in sales taxes last year. To have the feds interrupt that money flow during a budget crisis would be pretty disruptive.

I’d love to see the Orange County supervisors and several O.C. cities pass similar resolutions. It’s classic federalism, which conservatives used to support pretty jealously. 

From Alan Bock

Well, I guess that shows you how vast (or is that half-vast?) the Register’s influence is. A couple of weeks ago we praised the Fullerton City Council to the skies for declining to prohibit medical marijuana dispensaries. So what does the council do last night? Why, vote 4-1 to ban medical marijuana dispensaries.

Shame, shame on Mayor Sharon Quirk* and Councilman Shawn Nelson for reversing themselves on this issue. Quirk claims she was convinced by law enforcement that a dispensary would create huge law enforcement problems. That’s just bull, especially if a city passes decent regulations for such dispensaries, which are readily available from cities that have had success. I spent all day at one dispensary in Los Angeles a few months ago and I have visited several others for up to several hours at a time, and didn’t see a single thing that remotely resembled a problem — nobody toking up in the parking lot or looking to resell to a recreational user or anything (which wouldn’t make any sense since the prices are typically much higher than “street” prices). The best dispensaries check recommendations carefully and have guards to prevent anybody without a recommendation from even being in the same room with the medicine. It’s not a cinch to do it right, but it’s not all that hard either.

What prohibitions on dispensaries tell patients — who are duly authorized by state law, passed by the voters, with no chance of it being reversed should the drug warriors want to try — is that they will have to resort to the black market to get their medicine, or take their chances growing their own knowing police practices are quite inconsistent and they could well be subject to confiscation and a court battle and foot-dragging to get their medicine back, even though courts have consistently ruled that it has to be returned.

When, oh, when, will local law enforcement agencies accept the fact that medical marijuana is a valid law in California that they are sworn to uphold, and try in good faith to figure out how to do it, rather than concocting fairy tales about enforcement problems and generally trying to nullify the law?

I think public officials and law enforcement officers should be required to read and take a comprehension test on the Institute of Medicine’s report, “Marijuana and Medicine: Assessing the Science Base” (downloadable here) before opening their mouths on the subject.  The report was commissioned by then drug-czar Gen. Barry McCaffrey and makes it clear that there is a wealth of scientific evidence for marijuana’s medical efficacy. It was published in 1999 and a good deal of new research has been done since (mostly overseas thanks the the U.S. government’s squelching of most research proposals here).

Or, of course, they could read my book, “Waiting to Inhale: The Politics of Medical Marijuana.”

*The original post misdentified Ms. Quirk as Shirley

From Steven Greenhut:

Fullerton’s City Council voted 3-2 to adopt a sensible and humane policy toward medical marijuana, as this Register report explains. The three yes votes — to create regulations to allow these dispensaries to operate, rather than running them out of town — came from Mayor Sharon Quirk, Councilwoman Pam Keller and Councilman Shawn Nelson. Quirk and Keller are Democrats, and Nelson is a conservative Republican. The two no votes came from the council’s two RINO’s (Republicans In Name Only), Dick Jones and Don Bankhead. Both showed an amazing lack of understanding of their basic duties as councilmembers. They are sworn to uphold state law, and state law allows these dispensaries to operate. Bankhead argued that the city must uphold federal law. And Jones rambled on, as he accused the cancer-ridden people who use medical marijuana of being “druggies.” Watch his incoherent and unintelligible discussions yourself on this city of Fullerton video. Jump to Item 6 and move ahead to Doctor Jones’ talk for a reminder that one needn’t be a constitutional scholar to win a council seat. It’s also a reminder that most local Republicans are no friends of freedom or limited government.

From Alan Bock

I may still be in a bit of an afterglow, but I’m feeling more optimistic about the possibility of some reform of our useless but harmful drug prohibition laws than I have in some time. I returned late Sunday night from New Orleans, where I attended the semi-annual conference of the Drug Policy Alliance.

I went in part because the DPA gave me the Edward M. Brecher award for “distinguished achievement in journalism” at the awards banquet Saturday night. Ed Brecher was the science/medicine journalist who put together the book “Licit and Illicit Drugs,” sort of a consumer’s guide to the pros and cons, benefits and unfortunate side-effects of everything from aspirin through prescription drugs to heroin. He noticed that the pharmacological/safety differences between licit and illicit drugs were sometimes nonexistent, and that some illicit drugs were less dangerous than legal drugs, and became a quiet advocate for more rational regulation. Given that previous recipients have included Hugh Downs, Catherine Crier, the Economist magazine and Jacob Sullum of Reason, I was quite honored.

What really cheered me, however, was the fact that 1,200 people, 50 percent more than at the last conference, attended, and almost all of those I met (obviously I couldn’t connect personally with everybody) seemed committed, pretty well informed and reasonably intelligent. I was especially pleased to see so many young people, most of them members of Students for Sensible Drug Policy, and dozens of active and enthusiastic members of Law Enforcement Against Prohibition (L.E.A.P.), who have seem the futility and harmfulness of the drug war from the front lines. It was great to see so many people wearing T-shirts saying “Cops say legalize drugs: Ask Me Why.”

Of course the arguments against prohibition have been more intelligent, informed, logical and rational than the arguments for prohibition for a long time, so if sensibleness were the criterion the laws would have been ended eons ago. But I think I see a changing correlation of forces.

From Alan Bock

I haven’t read the entire decision yet (you can download it from here), but the most encouraging thing about the state appellate court’s decision upholding a court order to the Garden Grove Police to return the medical marijuana they seized from Felix Kha, a legitimate medical marijuana patient under California law, is that it was agreed to unanimously by the three-judge panel and it was very strongly worded. In effect, it ruled that the common practice of police seizing marijuana from legitimate patients — Americans for Safe Access, a patient advocacy group, says it has received over 800 patient reports in the last two years, and in 90 percent of encounters with police marijuana was seized regardless of probable cause — amounts to a concerted effort to nullify state law through refusal to abide by its clear provisions. Indeed, in my view, seizing marijuana from a legitimate patient is facially illegal and amounts to theft, although the appellate court didn’t quite come out and put it that way.

Another notable fact about the decision is that two of the judges on the panel were former district attorneys, and Judge Bedsworth, who wrote the decision, is former president of the Ornge County District Attorneys’ Association, according to Joe Elford, who argued the case on behalf of Mr. Kha. Yet they were very clear that state law enforcement officials’ job is to uphold state law, not to enforce federal law. The California constitution is also very clear on this, but all too many police agencies have chosen to ignore it and argue that they have a duty to uphold federal law, or that they would violate federal law. But the decision points out that federal law and previous court decisions create immunity for local law enforcement officials handling controlled substances.

As it happens, I attended the oral arguments in the Oakland Cannabis Cooperative case, in which the Supreme Court decided that there could be no “medical necessity” defense under federal law and that federal prohibition was complete. During those arguments, Justice Ginsburg asked the government attorney why the government wasn’t invoking the “federal supremacy” doctrine to invalidate the California law. She replied that this was only one of many instances where state laws differed from federal laws, but that the issue before the court in this case was the interpretation of federal law (which was true).

Still to come is the case filed by San Diego County, which seeks what no critic of the Compassionate Use Act has before sought from a court (because it would stand no chance in my view), a decision that federal law actually trumps California law in this instance, making the California law invalid. It is before the same appellate district (though presumably not the same panel of three judges).

For all the background you need, of course, you could do worse than to read my book on medical marijuana, “Waiting to Inhale.”

From Steven Greenhut:

Watch this video of Mitt Romney blow off a medical marijuana patient. Hat tip to LewRockwell. 

From Steven Greenhut:

Robert Wexler of the National Coalition for Child Protection Reform sent along this bone-chilling story about child protective services workers breaking up a family because the father operated a medical marijuana dispensary in Corona. Apparently, the “family values” drug-warriors who support these policies don’t mind the destruction to individual families from overzealous government enforcement. By the way, state law allows medical marijuana, even though the feds contend otherwise.

Here’s an article from the Drug War Chronicle:

(more…)

From Steven Greenhut:

The board tabled Supervisor Pat Bates’ foolish, big-government effort to ban medical marijuana dispensaries in unincorporated areas thanks to Bill Campbell’s statement that he has come to believe in the utility of medical marijuana. Campbell said he believes there needs to be some way for sick people to access this medicine. Good for him and good for freedom. Bates wants to bring it back in 30 days, but this idea should be stopped cold. Janet Nguyen said she is supportive of the proposal, showing her to be an irrational drug warrior.

From Steven Greenhut:

Supervisor Pat Bates is has introduced a sneaky measure on the board agenda tomorrow that attempts to undermine the board’s previous efforts to allow medical marijuana ID cards for sick people who use it. The state allows medical marijuana, which is the genesis of the ID program approved by the board. But the feds forbid it, as part of the federal government’s irrational drug war. Instead of standing up for state perogatives, and siding with sick people who want to take helpful medicine against state agents who want to restrict freedom, Bates has proposed Item 30, which bans land uses that conflict with state or federal law. I would print the exact language but the county Web link is down. In her column on her Web site, Bates wrote:

“Although State law requires counties to issue Medical Marijuana ID cards, the State has not suggested counties must also provide the drug. The sale of marijuana is in fact illegal under federal law. As such, I do not believe the County of Orange should support the sale of an illegal product. Staff reported that the County does not currently have an official policy on medical marijuana dispensaries. I directed staff to return in 30-60 days with a proposed general ordinance specifically prohibiting dispensaries in the unincorporated areas of Orange County. Many South County cities already have moratoria or bans on medical marijuana dispensaries including Aliso Viejo, Laguna Hills, Lake Forest, Mission Viejo, and San Juan Capistrano.”

The measure is sneaky because it is written in a way that puts other supervisors in a box. Who could possibly be against banning land uses that conflict with state or federal law? She’s also making strange distinctions between allowing an ID card but opposing dispensaries. What is the use of the card if there is no place to use it?

From Steven Greenhut:

Gov. Arnold Schwarzenegger is one of the biggest disappointments in recent political history. He could have really broken the mold, and used his enormous political capital to change some attitudes and advance meaningful government reforms, but he instead has morphed into a really cool Gray Davis. In other words, he is a typical politician who is afraid of his own shadow and is too busy ingratiating himself to interest groups to do anything meaningful with his term. But I’m sure he’s having fun.

Here’s a small example: During an interview about his past life, the governor says he has never taken drugs. When pressed about a documentary showing him smoking a joint, the governor said: “That is not a drug. It’s a leaf.” Of course, typical politician that he has become, he had his press aide tell the world that the governor only was joking. Fair enough, but if the governor had any guts or any convictions, he could have talked about the stupidity of the federal government’s assault on California’s medical marijuana intiative or the silliness of keeping marijuana illegal for any reason. He could have pointed to the counterproductive and unjust nature of the drug war.

But that would have taken a special politician, and — beyond his movie, body-building persona — there is nothing particularly special about Arnold The Politician.

From Alan Bock:
Last Friday news reports based on a new study in the British medical journal Lancet suggested that smoking a single joint of marijuana could increase your risk of schizophrenia and other psychotic diseases by 40 percent. Later in this story it was explained that this was a correlational study, not one that proved or even suggested causation. So it could have simply meant that people with schizophrenia are more likely to smoke marijuana than those who don’t have it. But the study itself doesn’t tell us that either. But the temptation to go with a sensational headline was apparently too great.

Maia Svalavitz at STATS.org, an outfit at George Mason University that tries to sort out the numbers behind the news, has analyzed the story and the study. She notes that if the premise in the lead were true, we would have expected an increase in schizophrenia in the last few decades, since cannabis use in Britain has increased dramatically. But a check of Medline shows that no such thing has happened, that schizophrenia rates have stayed flat.

She also notes that while a 40 percent increase might sound dramatic, to epidemiologists it is merely a blip; they don’t get interested until the increases are in the 200-300 percent range. By way of comparison she cites one study that suggests an increase of 800 percent in the risk of psychosis for men who use alcohol (though that one was correlational rather than causational as well).

Apparently “Reefer Madness” lives. Is there something about being for prohibition that hampers the ability to put facts in context?

It is likely that the Hinchey-Rohrabacher amendment to the Justice Dept,-etc. appropriations bill will come up again tomorrow on the House floor. It would provide that no funds could be used by the Drug Enforcement Administration to go after patients and caregivers in states that have enacted medical marijuana laws.

Last year, in a Republican-majority House the measure got 163 votes, including that of Nancy Pelosi. This year the Democrats are in the majority and an additional state (New Mexico) has enacted a medical marijuana law. Rhode Island made its law permanent with an overwhelming override of Republican Gov. Donald Carcieri’s veto, and Vermont expanded its medical marijuana law to cover more conditions. So it should be clear to the lawmakers that public support for medical marijuana, as reflected in opinion polls and action at the state level, remains strong. It shouldn’t take an ounce of courage to back this amendment. We’ll see how the Democrats do now that they’re in charge.

From Mandie Russell:

Here’s a video of the highlights from the medical marijuana ID card decision yesterday at the O.C. Board of Supervisors meeting:

From Alan Bock:

The O.C. Board of Supervisors has approved, by a 4-1 vote, going ahead with the identification card program for medical marijuana patients mandated by state law (it will take 120 days to finalize). Chairman Chris Norby, who spearheaded the effort, deserves special credit for being so persistent and sensible, and Bill Campbell surprised me (most pleasantly) by endorsing the program and being strong for it. John Moorlach raised some fussy questions (what kind of sanctions for abuse? Is arrest really a problem for patients?) and Pat Bates seemed to agonize but finally voted for it after a couple of tweaks were put in (can abused cards be rescinded? will there be safeguards so only legal residents can get them?).

Janet Nguyen stuck by her previous position that since federal law still prohibits marijuana completely, O.C. shouldn’t implement programs that contradict it, regardless of state law. That position is simply mistaken.

I was in the Supreme Court when the Oakland Cannabis Buyers Cooperative case was argued, and Justice Ginsburg then asked the government lawyer why the government wasn’t asserting the principle of federal supremacy, which would have the effect of invalidating the state law. The government lawyer replied that this was simply one of those instances, as happens in a federalist system, where state law differs from federal law, and federal authorities can enforce federal law while state authorities enforce their own laws.. The federal government has never tried to use the supremacy doctrine to strike down state medical marijuana laws, probably because it would fail because regulation of medicine has traditionally been a state function and asserting federal supremacy here would be a big power grab not supported by precedent. 

From Alan Bock

A memorial service was held today at the Quaker Berkeley Friends Church for Tod Mikuriya, the Berkeley-based psychiatrist who may well have been the medical practitioner most responsible for resurrecting and expanding knowledge of the medicinal benefits of marijuana, or cannabis (with the possible exception of Harvard’s Lester Grinspoon). Tod died Sunday at his home at 73, of complications of cancer.

I first encountered Tod, indirectly, through the book he compiled in 1973, “Marijuana: Mdical Papers,” which somebody gave me in the 1980s. The book (465 pp.) consists of direct reprints of papers done by doctors and scientists, beginning with O’Shaugnessy’s 1839 paper about his encounters with medicinal uses of cannabis while working in India. I found it eye-opening. I was already in favor of legalizing marijuana for ideological reasons, but I hadn’t been aware of just how extensive the medical literature on beneficial uses — which had mostly disappeared down a black hole after marijuana prohibition was enacted — had been.

I met Tod briefly when he testified as a court-certified expert in Marvin Chavez’s trial. Then I interviewed him at his home while I was doing research for my own book, “Waiting to Inhale: The Politics of Medical Marijuana.” I wasn’t aware at the time of his interest in choral music and English madrigals — though with his deep, rich voice I should have figured it. It would have been one more thing we have in common. He was delightful — friendly, erudite, interested in everything and everyone, and suitably irreverent about the powers that be.

Tod helped to write Prop. 215. After its passage, he became part of the Catch-22 that patients encountered. Most doctors know nothing about the medicinal uses of marijuana and were reluctant to recommend it. So patients tended to flock to just a few doctors who knew a few things and were willing to stick their necks out. This phenomenon made those doctors vulnerable to accusations that they were “Dr. Feelgoods,” willing to recommend marijuana to anyone who paid a fee. Tod was investigated repeatedly and unfairly by the California Medical Board (though not on the basis of any patient complaints), but they were never able to show he had done anything unethical or unprofessional.

Farewell to a too-little-recognized hero.

From Alan Bockabock@ocregister.com

Earlier this year Americans for Safe Access, a medical marijuana advocacy group, filed a lawsuit demanding that the federal Department of Health and Human Services (HHS) comply with a little-known law called the Data Quality Act, which is designed to make sure that regulatory agencies base their decisions on sound science. This after numerous attempts to get HHS to eliminate statements that there are no known medical uses for medical marijuana, which is plainly false, from various publications and Web sites.

This week “Science” magazine weighed in with an editorial supporting ASA’s action, noting that “it’s already clear that HHS has violated its own DQA guidelines — going, you might say, one toke over the line.”