The Connection Between The
Federal Case And The Kubby Case:
The Oakland Model Is Based On The Federal Government’s Own Medical Marijuana Program;
Steve Kubby Based His Level Of Marijuana Cultivation On Oakland’s
(Marijuananews note: Although the Kubbys are
being prosecuted in a California court which has decided to pretend that Prop 215 does not
exist, the Kubbys’ defense will be based on the fact the number of plants that they
had matched the guidelines of the City of Oakland.
See
Oakland
City Council Votes To Allow Patients One And Half Pounds Of Medical MarijuanaOakland acted under Prop 215, but used the Federal government’s
own medical marijuana program for its guide. The Philadelphia lawsuit is aimed at forcing
the government to open that program to all qualified applicants.
Kubby is critical of the Americans For Medical Rights approach, which is to design
a law restrictive enough to get approved in enough states to force the federal government
to reschedule marijuana. They are winning elections, but with laws that are too
restrictive for someone in the Kubbys’ situation. In the short run, the AMR approach
is working, but it leaves many patients – like the Kubbys – holding the baggie.
Perhaps the real problem with this has nothing to do with pharmacology. AMR is trying
to push or woo the medical professions into accepting control over medical marijuana. Even
Dr. Grinspoon no longer thinks that this is feasible.
There are two problems here.
The first is medical. The doctors simply don’t know enough about cannabis to be
able to control access to it.
The second is political.
In the long run, only the full legalization of cannabis will work, because the
institutions discredited by their complicity in its suppression cannot be trusted with its
control.
That assumes that we can learn anything at all from this idiotic experience.
Below Steve Kubby’s opening comments is the original two plant plan proposed by
Lungren, et al., and then the plan that the city adopted.)
March 10, 1999
From Steve Kubby steve@kubby.org
Politicians, narcotics officers, and district attorneys would
like you to believe that Prop. 215 is not really workable as a law. These folks want
strict government controls such as those proposed by Bill Zimmerman of AMR limiting
patients to growing no more than 1.25 ounces at any one time. When you consider that the
U.S. Government sends each of its eight medical marijuana patients 7.1 pounds per year,
you can see why patients are so concerned that the Lockyer Task Force will end up
endangering them even more. In contrast, the City of Oakland has developed the only plan
that protects patients and provides the legal immunity intended by the 5.3 million voters
who approved the current wording of California’s medical marijuana law.
City Hall
One City Hall Plaza
Oakland, CA 94612
Office of City Manager
Robert C. Bobb
City Manager
510-238-33012
fax 510-238-2223
June 23, 1998
Public Safety Committee
Oakland City Council
Oakland, California
Chairperson Miley and Members of the Committee:
A Follow Up Report from the Medical Marijuana Working Group regarding the City’s
Low Law Enforcement Policy towards Medical Marijuana.
EXECUTIVE SUMMARY
The Medical Marijuana Working Group recommends that this committee adopt a policy,
which allows for the possession of a three-month supply of medical marijuana for each
patient who grows their marijuana indoors or possesses processed marijuana, or a year
supply for patients who grow outdoor marijuana. Medical marijuana caregivers should be
allowed to possess the same amount for each patient for whom they can establish legitimate
caregiver status.
The Police Department has agreed to implement a process, which does not seize processed
marijuana or uproot/destroy plants when a credible claim to medicinal use or caregiver
status is made.
BACKGROUND
On February 10, 1998, the Public Safety Committee received a Status Report on
City’s Implementation of Medical Marijuana Low Priority Policy prepared and presented
by the Oakland Police Department. In the relevant part of the report it proposed:
The Police Services Agency implements the low-priority policy as follows:
1.The Police Services Agency does not target medical Marijuana-related activities.
The Agency Investigates and becomes involved in marijuana-related activities (1)as a
result of citizens complaints, (2) incident to law enforcement activities related to
violation of laws unrelated to marijuana activities, or (3) due to public activity
involving marijuana that provides probable cause for investigation.
2. Persons who come into contact with law enforcement will not be cited or arrested and
marijuana in their possession will not be seized if all of the following conditions are
met:
a. The person establishes medicinal use or primary care giver status to the
satisfaction of the officer who makes the initial contact; A Command Officer shall be
summoned to the scene prior to any enforcement action.
b. The person possesses less than one once of marijuana in particle form or no more
than two grown plants; and
c. The person is not taken into custody for violation of laws unrelated to marijuana
activities.
3. An individual may be cited and/or arrested and marijuana in his/her possession will
be seized, submitted to the Police Services Agency’s criminalistics’ division
and returned to the possessor only pursuant to court order if:
a. The person does not establish medicinal use or primary care giver status;
or
b. The person possesses more than two grown plants or an ounce or more of
marijuana in particle form; or
c. The person is taken into custody and marijuana is seized and turned into
criminalistics’ Division in accordance with standard police procedure.
4. Consistent with the low-priority policy, the agency does not pursue law enforcement
activities with respect to the Cannabis Buyers’ Cooperative’s operations unless
citizen complaints or other reports dictate such action.
5. Persons who do not establish personal medicinal use or primary caregiver status may
be cited and arrested and marijuana in their possession will be seized.
Several questions were raised by members of the Committee, and
members of the Medical Marijuana Work Group expressed concern about adopting the one ounce
and two plant standards suggested by the District Attorney and the Attorney General,
respectively, for triggering law enforcement action.
Those standards did not evidence consideration of any recommendation from the medical
community concerning reasonable amounts necessary for legitimate medical use. The Medical
Marijuana Working Group also objected to uprooting/destroying marijuana plants in cases in
which the possessor claimed to be a patient or a caregiver but was unable to provide
satisfactory proof at the time of encountering an officer. In addition they objected to a
process which would force a legitimate patient or caregiver to obtain a court order to
secure the return of their medicine.
This Committee directed the Medical Marijuana working group to address the above
concerns and return to the Committee with appropriate recommendations. Specifically, the
Committee requested medical input concerning reasonable amounts necessary for legitimate
medical use.
DISCUSSION
The Medical Marijuana Working Group met four times in preparation for this report. The
Group reached easy consensus that a three-month supply was a reasonable amount for a
patient to possess. The Group wrestled with the difficulty of defining what would be a
reasonable amount of marijuana for a three-month supply. The difficulty in determining
this amount comes from the interplay of a variety of factors. The nature of the
patient’s illness bears strongly on the amount of marijuana they need to relieve
symptoms. Some illnesses will require daily medication. Others may only require occasional
medication. The type of marijuana available to the patient is another factor. Some types
are stronger than others are. Some can only be baked in other foods. That requires more
marijuana than the type that can be smoked. Even within the same types of marijuana, there
are qualitative differences in separate harvests.
Dr. Mikuriya offered the following Method for Calculating Actual Usable Amount:
See
Dr. Tod Mikuriya
Stands Up For Medical Marijuana Users In California Courts
 | Total number of plants (T) |
| Number of Immature plants (I) |
| Number of Unsuitable plants (u) |
| Usable number x Height in centimeters (H) x Width (W) divided by Density (D) |
| water (w) |
| lower leaves and stems (L) |
| seeds (S) |
=Net Usable amount divided by Number of stains (s)
=Actual Usable Amount (A) in grams
Reasonable Amount of Processed Marijuana
The Group agreed that a case by case determination of what was a three-month supply
would be an undue burden to place on the police department. It would require familiarity
with treatment schedules for different diseases. It would also require an ability to
differentiate between types as well as comparative efficiency within types. Rather than
impose such an unwieldy burden on the Police Department, the Group agreed to reach a
specific amount that could act as an operational rule of thumb.
The Food and Drug Administration is currently testing the medical uses of marijuana. In
their experiments the patients are given a monthly ration of three hundred cigarettes,
each weighing approximately .9 gram. This is approximately one half pound per month. The
Group agreed to adopt this federal standard as a reasonable amount for medical marijuana
patients to possess. Therefore a reasonable amount of processed marijuana for a patient to
possess would be a three-month supply, at half a pound per month, for a total of one and a
half pounds. A reasonable amount of processed marijuana for a caregiver to possess would
be the number of substantiated patients times one and a half pounds.
Reasonable Amount of Marijuana Plants
The Group also discussed the difficulty of determining a reasonable number of plants to
be processed. Outdoor plants are harvested once a year while indoor plants can be
harvested quarterly. Outdoor plants are typically larger and therefore generate a greater
yield.
In determining the reasonable number of outdoor plants, the group considered the fact
that they only produce once a year and that the reasonable harvest should be capable of
yielding the annual supply of four three month supplies, six pounds. 30 adult plants
should yield this harvest. An adult plant is one that has begun flowering. In order to
assure that the patient is capable of producing 30 flowering plants they should be allowed
to plant twice that number, 60 plants. They may maintain all 60 plants until they have 30
flowering plants. Once they have 30 flowering plants, they must destroy all the rest.
For indoor plants, it will take 48 plants to yield one and half pounds in a three-month
period. As above, the patient should be allowed to plant twice the number, 96 plants, and
maintain them until 48 are flowering. Once they have 48 flowering plants, they must
destroy the rest of the flowering plants. However, they can continue, for the next cycle,
to possess up to 96 non-flowering plants, for a cumulative total of 144 plants.
Patients are equally free to grow a combination of indoor and outdoor plants so long as
they do not exceed the individual (indoor or outdoor) limits described above, nor does
their cumulative number of plants (indoor and outdoor) exceed 144.
The reasonable number of plants for a caregiver to possess would be a multiple of the
number of substantiated patients being cared for times the type of plant, indoor or
outdoor.
Alternative Process
To avoid the possibility of destroying the plants of legitimate medical marijuana
patients and caregivers, the Police Department agreed to an alternative process to
uprooting/confiscating plants in cases in which a credible claim to patient or caregiver
status is made but not satisfactorily proven and there is no other collateral evidence
indicating an intent to sell (e.g. sales records, intercepted conversations, informants,
witnesses, or scales and packaging materials beyond what is reasonable to the situation).
The police will not uproot/confiscate plants so long as the claimed patient/caregiver
signs a statement declaring the number of plants, type of plants (i.e. marijuana) and
ownership of the plants. The police may also take photographs of the plants and sample
clippings from the bottom of the plants. The patient/caregiver must, within the next two
business days, provide proof as to their status as patient or caregiver. If they fail to
do so, within the time proscribed, the marijuana will be confiscated and treated as
evidence under standard police procedures.
In cases where an individual possesses processed marijuana but cannot satisfactorily
establish his/her patient or caregiver status, the police will confiscate the processed
marijuana. The marijuana will be specially stored for two business days. If satisfactory
proof of patient/caregiver status can be provided, within the proscribed time, the
marijuana will be returned. If not, the marijuana will be treated as evidence and handled
accordingly.
RECOMMENDATION
By consensus, the Medical Marijuana Working Group recommends adoption of the following
policy:
The Police Services Agency’ implements the low-priority policy as follows:
I.Marijuana-related activities are not targeted by the Police Services Agency.
The Agency investigates and becomes involved in marijuana-related activities (1) as a
result of citizen complains, (2) incident to law enforcement activities related to
violation of laws unrelated to marijuana activities, or (3) due to public activity
involving marijuana that provides probable cause for investigation.
II.Persons who come into contact with law enforcement will not be cited or arrested and
marijuana in their possession will not be seized if all of the following conditions are
met:
A.Status as Caregiver or Patient
The person establishes medicinal use or primary care giver status to the satisfaction
of the officer who makes the initial contact;
B.Amount of Marijuana
1.Particle Form
a. The medical marijuana patient possesses
(I)less than one and one-half pounds of marijuana in particle form, or
b.The caregiver possesses no more than the amount specified above for each patient as
to whom primary caregiver status is established to the officer’s satisfaction.
2.Plants
a.The medical marijuana patient possesses
(i)Indoor Plants:
| no more than 48 plants if they are flowering |
AND
| no more than 96 plants if the plants are indoors and less than 48 are flowering |
(ii)Outdoor Plants:
| no more than 30 plants if they are flowering |
OR
| no more than 60 plants if less than 30 are flowering |
(iii)Combination of Indoor an Outdoor Plants
| no more than a total of 144 plants, provided that the maximum amounts for indoor and
outdoor plants specified above (i.e. 30 flowering outdoor plants and 48 flowering indoor
plants), may not be exceeded. |
b.The primary caregiver possesses no more than the amounts specified above for each of
the patients for whom proof of primary caregiver status is established to the
officer’s satisfaction.
C. The person completes a statement admitting ownership, possession and amount.
D. The person is not taken into custody for violation of laws unrelated to marijuana
activities.
III. An individual will not be cited and/or arrested and marijuana in his/her
possession will not be seized if:
A. The individual does not establish primary caregiver status or medicinal use status
to the officer’s satisfaction, but based on the totality of the circumstances the
officer determines that there is no evidence of criminal activity (e.g., intent to sell,
informants, witnesses, sales records, etc.) and that the individual’s claim of
medicinal use or primary caregiver status is credible.
B. The person completes a statement admitting ownership, possession and amount.
C. The person is not taken into custody for violation of laws unrelated to marijuana
activities.
D.The person provides proof of medicinal use or caregiver status to the
satisfaction of the Police Department within two business days after the
police contact; and
E.The person possesses less than the amounts specified in the applicable provision of
II, above.
IV. Consistent with the low-priority policy, the Police Department does not pursue law
enforcement activities with respect to the Cannabis Buyers’ Cooperative’s
operations unless citizen complaints or other reports or information dictate such action.
V. Persons who fail to establish medicinal use or primary caregiver status to the
satisfaction of the officer and whose claim of such status is not determined by the
officer to be credible, may be cited and arrested and Marijuana in their possession may be
seized and turned into Criminalistics Division in accordance with standard police
procedure.
VI. No law enforcement action will be taken without the consultation and approval of a
Command Officer.
VII. The purpose of the foregoing policy guidelines is to assist the Police Services
Agency in implementing the City’s low-priority policy. These policy guidelines are
not intended to and shall not be interpreted to override an officer’s judgment and
discretion based on a case-by-case evaluation of the totality of the circumstances or to
interfere with the officer’s sworn duty to enforce applicable law. It is understood
by the City’s policymakers that the low-priority policy does not guarantee that every
individual who is a patient or caregiver within the meaning of Proposition 215, will not
be arrested, cited or have his/her marijuana seized.
VIII. The Police Department will develop an appropriate training bulletin to implement
the policies adopted by the Council.
Respectfully submitted,
Robert C. Bobb
City Manager
Join the Kubby Announce List and get e-mail updates:
Kubby-Announce-on@list.kubby.org
Supported