Oakland Club Challenges
Constitutionality of Federal Medical Marijuana Ban;
San Francisco To Test New Democratic State Administration -- 2 Articles
CANNABIS CLUB EXERTS LEGAL RIGHTS
OAKLAND—The U.S. Constitution doesn’t allow federal law to automatically trump states rights, the city argues in a legal brief filed Monday in support of the embattled Oakland Cannabis Buyers Cooperative.
In its latest efforts to bolster the 2,000-member club, the city is banking on the 9th and 10th amendments to the Constitution in an amicus curiae brief in the 9th U.S Circuit Court of Appeals.
The brief was written pro bono for the city by Linda LeCraw and former general counsel to the U.S. Federal Drug Administration Peter Barton Hutt, both of the Washington, D.C., firm Covington and Burling.
"It’s an extremely important case," said Hutt, who
helped write the Controlled Substances Act of 1974.
For another Constitutional challenge see
Action Class Suit For
Medical Marijuana Reported In USA Today and The Bay Area Reporter
and links
The U.S. Department of Justice filed suit last January to close the club, maintaining
marijuana is an illegal substance under the Controlled Substances Act.
The club is appealing an Oct. 19 order in the case, by U.S. District Judge Charles
Breyer, to close the club down.
See
Oakland Club Closed; Likely To
Cause "Human Suffering," Admits Judge -- Just Not Enough;
City Council To Consider Distribution -- 2 Articles
The city’s brief maintains federal laws regarding medical cannabis are "legislated truths," unsupported by logic, comparable to laws that persecuted African Americans, declared women unfit to vote and incarcerated Japanese Americans during World War II.
Hutt argues that California voters, by approving Proposition 215, the California Compassionate Use Act of 1996, "have deemed the medical use of cannabis to be a fundamental liberty interest."
Under the 9th Amendment, the burden is on the federal government to show the necessity of infringing that right, the city’s brief argues. And under the 10th Amendment, the federal government may not interfere with a power "reserved to the states ... or to people."
The 9th Amendment covers rights retained by the people. The 10th
Amendment refers to powers retained by the states and the people.
(Marijuananews note: 9th Amendment - Other Rights of
the People – "The enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the people.
10th Amendment – Rights Reserved to the States "The powers not
delegated to the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people."
There is nothing in the Constitution that specifically gives the Federal government
control over crime, medicine or agriculture, except as they involve relations between the
states, i. e. interstate commerce. Consequently, it would seem very cut and dried that the
state and people of California would have the right to determine whether or not the
citizens of that state could use a plant grown in that state for medical purposes without
let or hindrance from the federal government.
Unfortunately, the Executive and the Courts and the Congress seem to take the view the suppression of marijuana takes precedence over any part of the Constitution because the drug problem is a threat to the survival of the United States, or that marijuana prohibition is vital to the survival of the political establishment.
Also, the 9th and 10th Amendments have been around since 1791, and they have been ignored during most of this century.
Nonetheless, this is a challenge that had to been made and should win, if the Supremes decide that the Constitution does not have a marijuana exception to the Bill of Rights.)
Given the passage last year in five other states of medical marijuana laws, the federal government—particularly the 9th Circuit—must take a closer look at the issue, Hutt maintains.
The Oakland club’s court fight isn’t likely to change the Clinton administration’s stand on medical marijuana overnight, said Dave Fratello, spokesman for Americans for Medical Rights, which spearheaded the initiatives in other states last year.
"But it’s a fight worth fighting, if at least we can get the feds on the record," Fratello said.
Since the closure order, the Oakland cannabis club was allowed to reopen by the court on the condition it not distribute medical marijuana. The club is holding classes on growing marijuana—with none on the premises—and selling a variety of hemp products, including clothing, and paraphernalia to help pay $300,000 in legal bills.
"It’s been a stressful two years," said Jeff Jones, director of the
club.
See
Portrait of Jeff
Jones In San Francisco Chronicle Shows Why Marijuana Prohibition Can’t Survive Honest
Journalism
and links
"There’s a lot of fear out there."
See
California
Medical Marijuana User With Cancer Prosecuted Despite Letter From Doctor,
"Baseball-Size Lymph Glands"
Stacie Traylor, a club member with chronic pancreatitis, said the shutdown is starting to
take its toll. "I have some friends who can get it for me, but it’s a
gamble," she said.
Traylor, 24, uses marijuana to keep nausea at bay, and to keep food down.
Her weight dips dangerously low if she doesn’t.
If club members are too frail to grow it for themselves, or don’t know someone who does, they run the risk of buying marijuana laced with crack or some other harmful substance, Traylor said.
Councilmember Nate Miley (Eastmont-Seminary) said the city may be aided by having a new state attorney general, Bill Lockyer, and governor, Gray Davis, who appear to be more sympathetic than their predecessors, Dan Lungren and Pete Wilson.
"Someday in the future, society will recognize that cannabis can be used in controlled settings for medical uses," said Miley, who chairs the council’s public safety committee.
Councilmember John Russo (Grand Lake-Chinatown) agreed, and called the case a "classic federalism argument."
People will say, "There goes California and Jerry Brown’s city," Russo said.
"We’re trapped in the cultural wars of 30 years ago," said Russo. "This is about people getting medicine. Plants are not de facto morally bad or good."
Brown declined comment, on the basis that the suit was pending litigation, said his press secretary Stacey Wells.
Copyright: 1999 MediaNews Group, Inc. and ANG Newspapers
From The San Francisco Chronicle
chronletters@sfgate.com
http://www.sfgate.com/chronicle/
January 14, 1999
POLITICAL SHIFT MAY USHER IN NEW POT CLUB
By Glen Martin, Chronicle Staff Writer
See
New California
Attorney General To Enforce Prop 215 -- 2 Articles
and
Medicinal Marijuana
Majority:
"More voters are sending the message, but will their government listen?"-- San
Jose Mercury
Heartened by the change of administrations in Sacramento, advocates of medical marijuana
are gearing up to open a new medicinal pot club in San Francisco -- even though they may
be headed straight for a federal shutdown.
State and local authorities have indicated tacit support for a new club, a marked change in policy from Sacramento. This week, however, federal officials said they could not allow a new club to remain open.
Supporters of medical marijuana say the city generally has been bereft of legal pot since the San Francisco Cannabis Cultivators Club was closed in April.
The San Francisco Sheriff's Department shut the club on a Superior Court order after a long campaign against the outlet by former Attorney General Dan Lungren.
But now that Democrat Bill Lockyer is attorney general, say the advocates, the time is ripe for therapeutic pot clubs to once again open their doors in San Francisco.
``A couple of small outlets are currently operating, but the level of service they can provide is really minimal,'' said Jane Weirick, the executive director of the San Francisco Patients Resource Center, an ad hoc organization that plans to open the new club.
Weirick envisions an outlet comparable in size to the old
Cannabis Cultivators Club, which served about 9,000 patients under the direction of its
controversial leader, Dennis Peron.
See
Weirick said her group is searching for a building to house the new club, which she hopes to have running in six weeks or less.
The group has enough money to start, said Weirick, ``but we could always use more.''
One thing that will not inhibit the opening is the availability -- or rather, unavailability -- of the high- quality pot needed for medical use, said Weirick.
``There's a lot of it around,'' she said. ``That's the least of our problems.''
Weirick said the new club will operate along stricter guidelines than the old CCC. Peron was pilloried and ultimately prosecuted for what law enforcement officials said was a lax operation.
``We plan to run a very tight ship, using the model for the Oakland Cannabis Club, which set up a very workable system,'' she said.
``In fact, the Oakland club will handle all our eligibility paperwork and issue our membership cards,'' she said. ``They're already geared up to do it, and there's no point in reinventing the wheel. Eventually, we'd like to see a statewide cooperative of clubs that would all honor the same cards.''
Jeff Jones, the executive director of the Oakland Cannabis Club -- which saw its dispensary shut down October 20 by federal marshals -- said his eligibility requirements are simple but tough.
``First, we get a letter of recommendation from a physician,'' he said.
``Then we have a staff nurse call the physician to make sure the recommendation is not fraudulent. Then we call the state medical board to make sure the physician can legally prescribe drugs and that there are no complaints against his or her license.''
As far as the planned San Francisco club goes, said Weirick, only cardholders authorized to buy marijuana will be allowed into the areas where the pot is dispensed.
``That way there will be no doubt about the legality of the operation under Proposition 215 (the medical marijuana initiative that passed in 1996).''
Proposition 215 decriminalizes the use and possession of medical marijuana at the state level, but pot remains illegal under federal law.
``It is still a controlled substance under the U.S. Controlled Substances Act,'' said Evelyn James, the public information officer for the San Francisco office of the U.S. Drug Enforcement Administration. ``That hasn't changed.''
``Our position (in San Francisco) is that because it is a controlled substance, it would be appropriate to move against a new club,'' she said.
With such a shutdown in mind, Weirick said, the new club will have a separate clinic and administrative center.
``That way, we'll be able to conduct patient support even if the clinic (where the marijuana is dispensed) is forced to close,'' she said.
Weirick's group seems to be getting a green light from city officials.
San Francisco District Attorney Terence Hallinan said a major medical marijuana outlet
is a good idea for San Francisco -- as long as it is tightly regulated.
See
San Francisco
Chronicle Editorial Calls For State Government to Set Up Medical Marijuana Distribution
and links
``I've always said that it is more of a health issue than a legal issue,'' he said. ``Locally, this should strictly be a matter for the city Department of Health.''
Weirick said Peron will have no direct involvement in the new club ``except as a spiritual adviser. Without him, we never would have come this far.''
Flamboyant and aggressively partisan, Peron opened his first cannabis club in 1992. He soon became a prime target for state prosecutors. State agents raided his Market Street outlet in August 1996. Three months later, voters approved Proposition 215, the medical marijuana legalization initiative that Peron had drafted.
Despite 215's passage, Lungren continued his campaign against Peron. State charges for the illegal possession and distribution of marijuana remain outstanding against Peron and several associates, though it is unclear whether Lockyer -- who voted for Proposition 215 --will continue to pursue the matter.
``There are no plans at this time (to drop) that case,'' said Hilary McLean, a spokeswoman for Lockyer.
McLean said that Lockyer generally supports the idea of medical marijuana but that he has some problems with Proposition 215.
``Bill voted for the initiative, and he has always supported access to appropriate medicine for people who need it,'' she said, noting that Lockyer's mother and sister both died of leukemia.
"But he has also said he sees some real problems with 215,'' McLean said.
"It runs counter to federal law, and it is in conflict with some aspects of state law. Bill wants to work out some kind of accommodation with the federal government and state legislators so that the people who truly need this medicine can get it.''
Hallinan also thinks the federal government could inhibit the resuscitation of San Francisco's cannabis clubs.
The U.S. Department of Justice filed suit against six state cannabis clubs last year, and federal agencies apparently remain uniformly opposed to medical marijuana. Still, Hallinan is moderately optimistic.
``With a new state administration, we can hopefully reach an accommodation with the feds,'' said Hallinan. ``The main reason they came down so hard on the clubs in the past was because Lungren was urging them to do it.''
DEA agent James said that she didn't know if the advent of a new administration in Sacramento could presage a change in the opinions of U.S. Department of Justice and DEA administrators regarding medical marijuana.
James said that federal agents are unimpressed with Proposition 215 and the thesis that marijuana has genuine therapeutic applications.
``Here you have a situation where the opinion of registered
voters takes precedence over the medical establishment,'' she said. ``My heart goes out to
people who are sick, but I worry that these folks are being sold a bill of goods -- that
they're missing out on legitimate therapies because they've been taken in by the medical
marijuana hype.''
The first is that something called "the medical establishment" has the power to control what medicines sick people take in every state, even when a majority of the people in a state specifically reject this. That is the view being challenged by the Oakland club. A rejection of this view is implicit in California’s Prop 215, but it was actually made explicit in Arizona’s initiative in which the prohibitionist legislature tried to make FDA approval a prerequisite for any medicine to be prescribed in Arizona.
See
The second point, that sick people are "missing out on legitimate therapies because they've been taken in by the medical marijuana hype," is the basis of the FDA’s power to require proof of efficacy before approving a medicine. This might be called the "Laetrile argument."
If someone takes a medicine that does not work, instead of one that does, then they are clearly being harmed.
However, inasmuch as most of the uses of medical marijuana are simply for palliative purposes, appetite stimulation, reducing nausea, or pain -- in short, for symptomatic relief -- which is immediately obvious to the patient, then this argument does not apply. People cannot immediately determine whether or not a drug is curing their illness, but they are the best judges of their own pain and nausea, etc.
If DEA agent James does not know this, then she has no business trying to regulate the drug use of seriously ill people.
If she does know this, and she is simply lying to justify inflicting more fear, pain and suffering on the sick and dying, then she ideally qualified to work for the DEA.)