Today, citizen petitions asking our elected officials to uphold the law and implement the Compassionate Use Act of 1996 are being brought before county boards of supervisors in Los Angeles, San Diego and Humboldt counties. This will bring to five the number of California counties that have received notice by petition that they are in violation of the law and of the California constitution.
See
Kubby Goes After Placer County’s War On Medical Marijuana Patients.
The people of California have patiently waited more than three years since Prop. 215 became law. The Compassionate Use Act of 1996, H 11362.5 although law, has not been implemented. No guidelines have been adopted, no "plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana" has been implemented.

California officials have claimed that H 11362.5 cannot be implemented because of conflict with federal law. This false claim is contrary to Article III, Section 3.5 of the California Constitution:

"An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power: ... (c) to declare a statute unenforceable, or to refuse to enforce a statute, on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such a statute is prohibited by federal law or federal regulations."

No appellate court has done so in regard to Prop. 215. In fact, no legal challenge has been filed seeking to invalidate the law on the basis of a conflict with federal laws or regulations - or for any reason.

This country has gone a long way in the last 70 years or so in the direction of completely centralized power, with the national government calling all the shots. But it hasn't gone all the way yet. The attitude of state officials, when a potential conflict between state and federal laws is perceived, still should be to enforce state law and let the national
government use the courts to change the situation if necessary.

And it turns out the California Constitution (in a provision adopted in 1978) explicitly requires that course of action. The Orange County Register studied this problem and concluded:

"Government officials are required by the California Constitution to enforce and implement Prop. 215 unless and until an appellate court orders them not to do so."
See
California Constitution Specifically Prohibits State Officials From Using Federal Laws
As An Excuse For Not Enforcing State Laws Like Prop 215 Without A Court Ruling.
Great Orange County Register Editorial.

Until our elected officials uphold the law, medical marijuana patients will be forced to play a deadly game of "LAW ENFORCEMENT ROULETTE." Sick, disabled and dying patients are being forced by law enforcement to choose between buying their life-saving medicine on the black market or growing their own safe supply and risk being raided, arrested, dragged through the criminal justice system, exposed to opportunistic infections,
publicly humiliated, bankrupted and worse.

Although the Compassionate Use Act sets no limits on how much marijuana a patient may cultivate, AMMA supports limits as a bar to prosecution, so that patients who grow below a certain number of plants can be protected from arrest--and police have a bright line to use for deciding whether to arrest or not. We believe the best way to set limits and to comply with Federal standards for medical marijuana cultivation is to adopt the Oakland Guidelines.
See
Full Text of Proposition 215 Compassionate Use Act of 1996

From THE AMERICAN MEDICAL MARIJUANA ASSOCIATION

Dec. 8, 1999
From Steve Kubby steve@kubby.org

OLD SHERIFF'S POLICY ENDANGERS SICK PEOPLE
See
Kubby Seeks Implementation Of Prop. 215 In Orange County;
Launches The Kubby Chronicles Email Letter
– See Subscription Info Below

(SANTA ANA, CA) On December 2, 1999, a historic meeting took place in the Orange County Sheriff's office that was unthinkable just a few years ago. In the same massive fortress from which Sheriff Brad Gates once directed his statewide, anti-Prop. 215 campaign, Sheriff Mike Carona, Assist. Sheriff George Jaramillo, and Capt. Randy Blair, head of the Narcotics and Vice Division met with representatives of the American Medical Marijuana Association (AMMA).

Representing AMMA, Anna Boyce R.N., Steve Kubby, and Jeff Jones, executive director of the Oakland Cannabis Buyers' Cooperative, introduced themselves and explained their concerns about the Sheriff's Department's violation of the California constitution, Article III, Section 3.5, and for failing to implement the Compassionate Use Act of 1996.

Captain Blair handed the AMMA group Bulletin 97-15, "Marijuana for Medical Use." In this Training Bulletin, issued by former Sheriff Brad Gates, the group found a document that they believe is even more restrictive than the Peace Officer's Guidelines, issued 2/24/97 by then Attorney General Dan Lungren. Where Lungren's Guidelines allowed for up to two pounds, Orange County's limit is a strict 28.5 grams or 57 cigarettes.

Steve Kubby pointed out that a Federal IND medical marijuana patient receives and consumes over 60 grams per week. "So to comply with the Gates Bulletin, a sick and dying patient would have to get out of bed and drive to some scary part of town, find a criminal to sell him marijuana, of questionable quality, at least twice a week, in order to avoid arrest," complained Kubby.

Mr. Kubby also raised the human rights issue of Orange County deputies seizing and destroying medical supplies, in violation of state law and international law. Under current guidelines written by Brad Gates, deputies are instructed to destroy and seize all plants and medicine, regardless of medical documentation.

Sheriff Carona was also quite clear that anyone incarcerated in his jail, even with a life and death necessity for medical marijuana, will NOT receive any marijuana.

The AMMA group told Sheriff Carona why they believe these old policies, instituted by one of the chief opponents to Prop. 215, endanger sick people and violate the law. Sheriff Carona responded that the law in unclear and untested, so he is relying upon the courts.

Steve Kubby pointed out that the current Orange County policy gives patients no more protection than recreational users. Captain Blair replied that possession of less than 28.5 grams is still an offense (non-jailable, $100 fine) and patients with proper documentation could claim exemption.

Capt. Blair added, "all this would be solved if only the federal government would reschedule marijuana. Get it rescheduled and you won't have a problem at all for anyone." Since this is one of the four action items AMMA has requested from the Board of Supervisors, Kubby said he was pleased that there was agreement on at least one issue with Captain Blair.

Despite the chilling influence that Sheriff Brad Gates still exerts over the Orange County Sheriff's Department and the very real threat their old policies pose to sick people, Kubby said he was encouraged by their first meeting.

"Sheriff Mike Carona and his assistant, Sheriff George Jaramillo impressed us with their integrity, ability and genuine concern for our issue," Kubby said. Sheriff Carona, emphasizes he is neutral on this issue told the AMMA group, "the door is open to you. If there are specific incidents which AMMA feels medical patients are being harmed, our department is here to speak to you about it."

After the meeting, Steve Kubby sent Sheriff Carona a letter with detailed information about the Oakland Guidelines as well as information about the newly announced federal limit of not prosecuting for less than 250 plants.

"We intend to do whatever it takes to persuade Sheriff Carona to update Orange County's outdated and dangerous policy on medical marijuana and start providing the protection intended by the 5.3 million voters who passed Prop. 215," Kubby said.