Safe Access Now Director's Newsletter
a reasonable "safe harbor" from arrest based on federal research
Volume 3 # 1. January 2005
These newsletters are issued on an occasional basis. Feel free to forward to interested people. Subscription information is in the header above. -- Chris Conrad, Director
California reformers are invited to the Oakland YWCA on Feb 19 for a statewide conference on the state of state reform efforts and strategies for future gains. We are considering whether SAN should hold a breakout session, meet separately or meet as part of a broader medical marijuana workshop. Please consider registering and attending the conference and click on this link for more information .
When the California medical marijuana initiative was written and voted into law as HS 11362.5, it granted qualified patients limited immunity from prosecution, but neglected to state that police should not arrest them. Safe Access Now (SAN) has been working for several years to establish a reasonable safe harbor for patients at one half the federal IND cannabis dosage plus a proportional garden size based on canopy, consistent with the DEA yield study. Our new booklet is hoped to get the ball rolling again as we wrap up the year.
After the state legislature last year adopted the HS11362.7(a) guideline that set immunity from arrest at a minimum of only 1/12 the amount used in the federal IND program, the code gave localities an excuse to avoid the issue. It has therefore become more difficult to get localities to expand upon that amount -- but even more important to do so because otherwise the statewide default amounts will be enforced as limits.
After Humboldt County DA Paul Gallegos adopted a policy based on the SAN guidelines, a big logging company decided to fund a recall for enforcing environmental laws. As a distraction to hide its true motives the company dragged the medical guidelines into the campaign, which threw the policy into jeopardy. To bring the focus back to the loggers' real motives, the DA washed his hands of the policy and dumped it onto the County Supervisors. The Supervisors were expected to endorse them but instead delayed the decision and handed it to a citizen taskforce. Police, school administrators, patients, doctors and community leaders looked over with solid science, and argued their positions. Meanwhile, the DA won the election with a higher margin of voter support than he had in the original campaign. The taskforce returned to the supervisors with minor modifications to the original guidelines and they were once again approved. Several cities then adopted the statewide guidelines.
However, we have generally managed to hold ground and expand now that another county, Santa Cruz, has adopted SAN quantities. Sonoma, Del Norte and Mendocino held tight. Kern increased its policy to half our recommendation, and the City of Long Beach ordered its police department to respect doctor approvals. Petaluma encouraged Sonoma county to adopt a 4.5 pound guideline, but so far it is staying with three pounds. Meetings in San Francisco and other counties are ongoing, but it's amazing how slowly the wheels of bureaucracy can roll if they so desire.
We go into 2005 with our SAN booklet, Cannabis Yields and Dosage, and a renewed optimism that we will continue to make gains.
Oakland Measure Z means a business mandate
The Oakland Civil Liberties Alliance expanded the base of support for cannabis reform in 2004 by using the electoral process after polls and focus groups showed public opinion support for regulating adult sales and use. Language was drafted and filed, but the signature drive was much more difficult than anyone had expected. Just as the campaign got going, City Council decided to close down more than half of the medical marijuana dispensaries operating there and scatter the remaining four throughout the area, thereby destroying the region's most accessible dispensary district. Public anger at the move only increased voter support. The campaign petition came through with organizers thinking it was clinging by the edge of its teeth but in fact it managed a comfortable margin of verified signatures. Voters made the connection that regulated adult access takes marijuana off the streets and makes it easier for patients to have safe access as well. The tax and regulate ordinance passed overwhelmingly with 65% of the vote -- almost two to one. Now codified as the Oakland Cannabis Regulation Ordinance, the policy makes all private adult cannabis offenses, including sales and cultivation, the City's lowest law enforcement priority.
Chris Conrad's testimony was given favorable mention by the state Court of Appeals October 25, 2004 Arbacauskas decision, which upheld dismissal of charges against a patient of intent to distribute based on the quantity of medical marijuana under cultivation. The appeals court agreed that other mitigating factors must be considered, and rejected the prosecutor's effort to refile charges against the patient The case has major impact beyond medical marijuana, because the court held that benefits to people because it requires prosecutors in all criminal cases to introduce new evidence before they can re-file charges once they have been dismissed by a judge. Previously DAs had three opportunities to file the identical case. This is one of several Appeals Court cases (plus one Supreme Court case) where Conrad's expertise has been noted, but the first time the Court went into such depth regarding his testimony.
Other major State Court decisions handed down in 2004 include the following. Spark decision : Juries and judges do not get to "second guess" a doctor's approval, condition need not be determined to be "serious" for a valid approval. Wright decision : Compares the Yount and Trippet decisions and affirms Trippet that medical use of marijuana is a defense against HS 11360 transportation charges against a patient or caregiver. The David Bearman decision helped protect physician's records from a Medical Board "fishing expedition" style investigation.
The US Supreme Court heard Raich v. Ashcroft, argued on November 29. This important case asks whether or not the Interstate Commerce Clause, which currently is used by the federal government to prohibit trafficking in marijuana also applies to citizens in states that have medical marijuana provisions allowing them to use, cultivate, and possess cannabis when no commercial activity is involved. Numerous other cases are being held up in court pending this ruling, expected to be announced this spring. If Angel Raich and Diane Monson prevail, it will limit federal powers, and protect individuals and cooperatives, like WAMM in Santa Cruz, CA, from federal arrest. That will give more states the power to determine intrastate marijuana policies. If the patients lose, States with medical marijuana provisions will maintain their laws, but the Feds might then be able to again arrest and prosecute whomever they want on a whim, just as they have been doing. Many people are anxiously awaiting the outcome -- people like Bryan Epis, a medical marijuana provider who began serving a 10 year sentence in prison, but was released this year pending appeal. While many observers at the hearing came back from Washington, DC, feeling somewhat discouraged, there is still hope. They presented an amazing case, and the court of public opinion is definitely on their side. For more details on their case, check out the web site: http://www.angeljustice.org/.
A new threat is emerging to medical rights in California, and that is the adoption of ordinances in a variety of counties and municipalities in an effort to exclude cannabis dispensaries from operating -- try zoning them out of existence. However with HS 11362.5 giving patients a right to obtain cannabis and HS 11362.7 giving limited immunity from prosecution for sales, those measures would seem to violate the constitutional right of patients to obtain medical marijuana legally. SAN and Americans for Safe Access would like to hear from people who are interested in organizing around this issue and wants to hear from you. What should be done and what can you do to help? Drop us a note.
SAN is a non-partisan organization dedicated to the proper implementation of uniform guidelines in all of California's counties in compliance with H&S code 11362.5, the Compassionate Use Act of 1996. It was founded by Chris Conrad with Ralph Sherrow and has activists in about half the counties of California. We are an educational and activist organization only, and in no way supply medicine. Our proposal has been to stop the arrests as well as the prosecution of patients by creating a safe harbor of presumed compliance with the law. We work with all levels of government to achieve this goal.
Since the federal government's IND program has established more than six pounds per year of marijuana as a safe and effective standard, with some patients receiving even more, SAN proposes that patients should be allowed to cultivate and consume that amount as a reasonable level of compliance. However, since many patients use less than that amount, we offer a compromise of allowing up to 3 pounds of processed cannabis bud per patient per year, which typically requires a canopy area of 100 square feet. Any amount of plants could be grown to fill in this area without exceeding the yield, but since a 5 year federal sentences is mandatory for growing 100 or more plants, we advocate 99 plants as the voluntary ceiling for patients. In addition, our proposals allow a physician to write a note that will exempt patients who need more from being bound by these figures. See our website http://www.safeaccessnow.net/ for more details.
Safe Access Now does not charge for the time and materials we expend to advance the safe harbor proposal for patients, but that does not mean it does not cost money to run this campaign. If you can help with a donation of any size, please send it to our financial coordinator, Chris Conrad, with a note saying it is intended for Safe Access Now work. If you plan to donate $100 or more and want a tax deduction, we can arrange a fiscal sponsor. Cash is great, but something of a mailing risk.
We do not have a bank account in our name, so please make checks out to either Chris Conrad or Family Council on Drug Awareness, and mail to:
Safe Access Now, PO Box 1716, El Cerrito CA 94530.
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