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Pot Shots

Will San Francisco Pander to Prohibitionists?

by FRED GARDNER

The city where the medical marijuana movement was launched 16 years ago in response to the AIDS epidemic now has more than 40 dispensaries serving a population whose illnesses are not necessarily grave. The situation is being portrayed by local Drug Warriors as proof that the movement was and is a scam, the façade for an industry. A snide piece by the Chronicle’s political gossip columnists, Matier and Ross, prominently played in the Sunday paper (3/20), led with these examples of supposedly outrageous cannabis clubs:

* The Happy Days Herbal Relief Center -which is run by a former crack addict and ex-con.

* The Holistic Center which is set to have its grand opening this week on the ground floor of a city-backed welfare hotel that houses a number of recovering drug addicts.

The day after the M&R piece ran, Mayor Gavin Newsom announced he would seek a 45-day moratorium on new clubs. And the proprietor of the Holistic Center, bowing to pressure, agreed to seek another location.

Obviously, the city is entitled to regulate businesses. But it’s regrettable that Newsom isn’t defending the right to medicate with cannabis as unequivocally as he defended same-sex marriage. They’re both civil liberties issues.

Instead of pandering to Matier & Ross, the mayor could have challenged their false assumptions.

* Why shouldn’t a former crack-addict and ex-con run a cannabis dispensary? The Happy Days proprietor, a man named Jeff Hunter, is using cannabis as a benign alternative to crack. What a worthy example! If Hunter was employed by a treatment corporation like Phoenix House, his crack-addict, ex-con status would be seen as a plus (credibility). It was violating the drug laws that landed Hunter in prison; he’s never been a violent criminal.

* People trying to practice total abstinence should not have to live under the same roof as a cannabis dispensary. But the city’s care-not-cash program is backing many residential settings, and there’s no reason why one or several shouldn’t be cannabis-friendly. Cannabis is being used by many recovering addicts and alcoholics as a benign alternative to their original drugs of choice. This has been well documented by Tod Mikuriya, MD, Tom O’Connell, MD, and other doctors who have monitored cannabis use by California patients in recent years.

Critics express outrage that cannabis dispensaries are frequented by seemingly able-bodied people in their teens and 20s. Matier & Ross quote the sarcastic comment of a woman who opposes new clubs in her neighborhood: "If these are for health, then we must have a huge epidemic." Unfortunately, we do -there’s a huge epidemic of depression, anxiety and stress in this country, and the young are hit especially hard. Many turn to alcohol or are prescribed Ritalin, Prozac and other psychotropic drugs.

The teen years are when individuals identify their "drug of choice," which becomes harder to alter as time goes on. Data collected by O’Connell show a negative correlation between the availability of cannabis and heavy drinking. Access to cannabis might not be a bad thing for troubled teens; for some, it might even be a lifesaver.

It’s a truism in our culture that childhood and adolescence can be difficult, psychologically; but then you reach your 20s and you’re supposedly in your prime. Reality isn’t like that. You hit your 20s with huge student loans to repay and/or at the "entry level" of the work force. Kids start arriving. You’re supposed to be able to start a family but you can’t, really. Young adults are under extreme stress as social and economic breakdown proceeds apace.

On Thursday, March 24, the Chronicle ran a shameful editorial called "Stoner Central." It was written by Ken Garcia (unless they’ve got somebody else who writes like a hysterical girl). Garcia, as a columnist, opposed Prop 215. As late as 2000 he wrote a snotty column headed "Dennis Peron -What a Dope." Whoever wrote the editorial pretends to have been for Prop 215 -although his/her choice of words suggests otherwise:

"In 1996, California voters humanely approved a measure allowing a few hits of weed to ease pain and suffering. But federal law recognizes no such right."

Both sentences are wrong. The San Francisco Chronicle is the metropolitan daily that should be the paper of record on the medical marijuana movement. Their coverage has been sporadic, uneven, and as the present editorial attests, has degenerated into inaccuracy and distortion.

California voters didn’t approve "a few hits of weed." We approved use without respect to delivery system or form. Cannabis tinctures, extracts, concentrates (hashish), etc., are forms of marijuana under the law -so say the attorney general and the courts. Isn’t there an editor who knows the law? And don’t they have a style book? "Weed," in this context, is a slur. The Matier and Ross piece that preceded it repeatedly used the term "dope." They don’t use "fag," "kike," "nigger," etc.; yet they feel free to employ slur words in what should be a serious discussion of if and how to regulate production and distribution of cannabis.

The Chronicle’s characterization of Prop 215 isn’t just wrong, it’s contemptuous and deceitful -a lie by omission. What California voters did in 1996 was mount a unique, astonishing show of resistance. We overcame a lifetime of war-on-drugs propaganda and told the government to lighten up, marijuana not only isn’t bad for you, it’s good for you! Prop 215 had been opposed not just by Attorney General Lungren and the Republicans but by President Bill Clinton, Gray Davis, C. Everett Koop, The California Medical Association, and law enforcement,, including 57 of 58 the district attorneys. (Bravo, Terence Hallinan!) It passed with 57% of the vote because most people know first-hand or from someone they trust that marijuana is safe and effective medicine.

The next wrong sentence: "But federal law recognizes no such right." Federal law for more than a year has been determined by the U.S. 9th Circuit Court of Appeal ruling allowing patient Diane Monson to grow her own cannabis for medicinal use and two caregivers to grow for Angel Raich. This is what Bush’s Justice Department has asked the Supreme Court to overturn.

Many counties and cities have put moratoriums and restrictions on cannabis clubs in anticipation of a ruling that goes against Raich. Law enforcement up and down the state is ready to pounce. Alameda County Sheriff Charles Plummer has said that if the DEA is going to take down a cannabis dispensary, he’ll gladly help! So much for his mandate under the California constitution to uphold state law.

The concentration of cannabis clubs in San Francisco is a function of Prop 215 being dis-implemented elsewhere. It’s not something to be ashamed of, particularly, but if the Supervisors decide to limit the number of clubs, one way to do it would be to enable rank-and-file patients to grow their own on the WAMM model. A city-sanctioned collective garden might invite reprisal by the feds, but if they come with machetes, the whole world will be watching.

"Things should start to get interesting right about now." -Bob Dylan


Doctor Fights for Parolee’s Rights

Philip A. Denney, MD, is a widely respected cannabis consultant who has never run afoul of the state medical board. With partner Robert E. Sullivan, MD, he practices in Redding, Carmichael, and Lake Forest (Orange County). Earlier this month a 41-year-old patient, B.B., enlisted Denney’s help in dealing with the Parole and Community Services Division of the Department of Corrections.

The letter that follows, dated March 7, 2005, is from a Regional Parole Administrator to B.B.

Your correspondence regarding modification of parole to authorize your use of marijuana for medicinal purposes was forwarded to me for response.

California Penal Code (sic) Section 11362.795(b)(1) does authorize you to make a written request to be allowed to use medicinal marijuana during the period you are on parole. However, because Federal law supercedes state law, and marijuana is illegal according to the Federal government, those using marijuana for medical purposes are subject to prosecution, while doctors prescribing it run the risk of losing their licenses.

Therefore, your written request to use medicinal marijuana is thereby denied. If you are dissatisfied with this decision, you may initiate an appeal by completing the attached California Department of corrections 602, Inmate/Parolee Appeal.

I trust this has been responsive to your concern.

Sincerely, Sharon C. Jackson

Here’s Denney’s March 19 letter to Jackson, on his patient’s behalf:

I am writing regarding your response to Mr. B.’s request to use medicinal cannabis while under court supervision. The document he provided me outlines a policy that is illegal under the California constitution and suggests an institutional policy of disregard for California law.

As you know, a majority of California voters in November 1996 approved the Compassionate Use Act, which became codified as Health and Safety Code 11362.5. The Act allows the use of cannabis as medicine "upon the written or oral recommendation or approval of a physician."

The use of medicinal cannabis has been addressed by the California Supreme Court in People v. Mower (2002), 28 Cal 4TH 457, and its use while under court supervision has been addressed by the California Appellate Courts in People v. Tilehkooh (2003) 113 Cal App 4th 1433 and People v. Spark (2004) C.A. 5th 8-2-04 #F042331.

The Mower Court stated "as a result of the enactment of section 11362.5(d), the possession and cultivation of marijuana is no more criminal -so long as its conditions are satisfied- than the possession and acquisition of any prescription drug"

In Tilehkooh, the Court held that a trial court erred in refusing to allow a defendant to present a compassionate use defense at a probation revocation hearing where one of the trial court’s reasons for finding the defense inapplicable was the the defendant "was not ‘seriously ill.’"

The Spark court found "the question of whether the medical use of marijuana is appropriate for a patient’s illness is a determination to be made by the physician. A physician’s determination ojn this medical issue is not to be second-guessed by jurors who might not deem the patient’s condition to be sufficiently ‘serious.’" The Spark court also found a legitimate patient’s probation cannot be revoked merely because federal law does not agree.

In addition, Article III Section 3.5 of the California State Constitution clearly states that "an administrative agency has no power 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" Thus your policy to deny all persons under supervision the right to use medicinal cannabis based on conflict with federal law is clearly unconstitutional! Your statement that "Those using marijuana for medical purposes are subject to prosecution, while doctors prescribing it run the risk of losing their licenses" is also erroneous. See Conant v. Walters, U.S. 9th Circuit Court of Appeals, December 2002.

Mr. B was evaluated in our office and found to have a serious medical condition which, in my professional opinion, benefits from medicinal cannabis use. A physician’s statement was issued to that effect (copy attached). In summary, Mr. B is to the best of my knowledge in full compliance with California law including Health and Safety Code (not penal code) Section 11362.795. To deny him access to medicine to which he is legally entitled is unconstitutional and to use the power of your office to further a personal political agenda is morally repugnant.

I trust that this information will encourage you to revise your policy to comply with California law. I await the courtesy of your reply.

Sincerely,

Philip A. Denney, MD

FRED GARDNER can be reached at journal@ccrmg.org