OUTRAGE IN LAW

Steven Kubby, the Libertarian Party candidate for governor and an acknowledged medical marijuana patient, and his wife Michele were arrested Tuesday and charged with possession of marijuana for sales, cultivation and conspiracy.

About 300 plants were confiscated with street value estimated at $420,000, according to Lt. Mike Allen of the North Tahoe Task Force.

The arrest, which followed a six-month investigation, raises yet again the question of whether Proposition 215 will ever be implemented properly in California. It would be helpful to hear more from Attorney General Bill Lockyer, who campaigned as a supporter of the rights of medical marijuana patients and could do a great deal to ensure compassionate and uniform enforcement of the law.

The law—Section 11362.5 of the Health and Safety Code—exempts patients with an authorization from a licensed physician and "primary caregivers" from the laws against possession, cultivation and use of marijuana. Selling, transporting and distributing marijuana are still illegal under state law, although appeals court decisions suggest the necessity of some leeway for patients and caregivers. So far no court has determined exactly how much leeway will be allowed and the state has not issued guidelines.

Mr. Kubby and his wife are patients who say they have authorization from licensed physicians and who acknowledge they grow marijuana plants in their basement for their own use but deny they distribute to anyone. They were rousted from their home in North Lake Tahoe Tuesday evening by a dozen members of the North Tahoe Narcotics Task Force and taken to the Placer County Jail in Auburn. Their bail, Mr. Kubby said, was set at $100,000 each and they were denied access to marijuana while in jail.

This is of great concern to those who know the couple. Mr. Kubby, 52, has malignant pheochronocycoma, or terminal adrenal cancer. Without medication, he says, his blood pressure "spikes" to dangerous levels. When we talked to him from jail yesterday afternoon he told us he had had three episodes of high blood pressure and was concerned that he might have a stroke. Marijuana works for Mr. Kubby better than conventional medications, and his doctor has authorized it. (The Kubby’s attorney, Dale Wood, told us he didn’t know what Michele’s medical condition is, but that she does have a physician’s recommendation.)

The real outrage is that Mr. Kubby was arrested at all. As Robert Raich, an attorney who is a member of the city of Oakland’s medical marijuana working group, told us, "I can’t think of anybody to whom Prop. 215 more directly applies than Steve Kubby. He has a physician’s authorization and he was growing only for his and his wife’s personal medical use. It’s troubling that he won’t have access to his medicine while in jail, but it’s even more troubling that he is in jail at all. Prop. 215 was written to keep patients out of jail."

Bill Lockyer’s press representative, Hilary McLean, told us that the attorney general’s policy is usually not to intervene in local decisions on prosecution and she knew of no plans to intervene in Mr. Kubby’s case.

See
After Lockyer Says He Won’t Fight To Support Rights Under Prop 215
Former California Libertarian Party Gubernatorial Candidate And Medical Marijuana Patient
Steve Kubby Arrested On Cultivation And "Conspiracy" Charges!

It should be the attorney general’s job to make sure that law enforcement officials abide by the statewide law. California voters passed Prop. 215 more than two years ago. The proposition itself hasn’t been challenged in court and has not been overturned—although various law enforcement agencies have nibbled at its edges in the way they have treated patients.

It’s time for law enforcement and the courts to respect that law.