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The Reverberations of Raich

by FRED GARDNER

Leroy Stubblefield’s lawyer, Ann Witte, still hopes his case-challenging the DEA’s right to confiscate marijuana from patients growing it under Oregon law- will be heard by the Ninth Circuit Court of Appeal Sept. 13. But last week prosecutors asked the Ninth Circuit to throw out Stubblefield’s appeal in light of the Supreme Court’s Raich decision. Witte, who is now drafting a response, says “The Raich case concerned federal power to enforce the Controlled Substances Act under the Commerce Clause, whereas we’re arguing that the Controlled Substances Act itself exempts from its reporting requirements those who have ‘lawfully obtained’ their controlled substances. Leroy Stubblefield ‘lawfully obtained’ his marijuana.”

Stubblefield, 57, is a quadraplegic vet who survived the dangers of Vietnam only to have his spinal column destroyed in a car crash the day after he got discharged in ’69. He lived in a nursing home until 1976, at which time, with government assistance, he was able to live more-or-less independently. In Sept. 2002 a DEA agent confiscated 12 marijuana plants being grown indoors by Stubblefield and two other documented patients, Scotty Russell, and Clarence Vandehey, at Stubblefield’s residence in Sweet Home, Oregon. The three men were Caucasian, middle-aged, longtime Linn County residents with clean records. None had been publicizing their marijuana use. They were such low-profile rank-and-filers that none of Oregon’s marijuana-reform organizations got wind of the raid until a month after it occurred. Paul Stanford of the Hemp & Cannabis Foundation happened to call Stubblefield on behalf of a patient who was selling a trailer in Sweet Home and needed a local phone contact. Stanford says he learned from Russell, “When they first came to the door, the sheriff didn’t say he had a federal agent with him. He identified himself as an officer with the Linn County VALIANT Team. Valiant is a pretty ironic word here. It’s an acronym for ‘Valley Inter-agency Narcotics Team.’

“Leroy was in bed when they came. His caregiver [Russell] took them back and the officer started talking to Leroy from behind the bed and the caregiver had to explain that Leroy couldn’t roll over and see him. They said they wanted to inspect the grow site. They were all under a misapprehension that the state has the right to inspect a grow site. A patient who has a medical marijuana card doesn’t give up any of their rights to be free from unreasonable search and seizure. But Leroy said, ‘Okay, you can go look.’ So the Linn County officer went down with several other officers, never saying that one of them is a federal agent. And as soon as they get down there they play out their little drama: ‘I’m not taking it, this garden is in compliance under state law.’ ‘Well, I’m taking it because it’s illegal under federal law.’ And that’s what they did They mentioned to Scotty while they were down there that this was one of the first gardens they’d inspected that was in full compliance. And this is the first one they confiscated!”

Stanford’s THC Foundation gave Stubblefield et al seven replacement plants and hired Witte, who filed for a restraining order against state and federal agents. (Under Oregon law, the Health Services Department is authorized to tell state and local law-enforcement officers -but not the feds- whether a given patient or address is registered. The sheriff and state narcotics officers claimed they did not assist the DEA.) A federal judge denied the request saying Stubblefield had not shown a likelihood that he would be raided again. Witte appealed the denial to the Ninth Circuit in January ’04.

 

Dr. Fry in Federal Court

It was already hot at 8 a.m. July 21 as Marian “Mollie” Fry, MD, held up a Holy Bible and hand-lettered sign that said “Compassion, Not Incarceration,” to drivers passing the federal building in Sacramento. An hour later Fry and her husband, attorney Dale Schafer, were standing before U.S. District Court Judge Garland E. Burrell, Jr., to discuss the timing of their pre-trial briefs, etc. Fry and Schafer are charged with conspiracy to cultivate and distribute marijuana. They claim that their approach was known to and approved by local and state law enforcers. They expect their fate will be in the hands of a jury instructed to ignore California’s medical marijuana law.

 

Sign of the Times

Posted on the door at 96 Lafayette Street, July 16:

Dear MendoHealing patients,

We are temporarily closed at this location until a court hearing with a few neighbors. Contrary to rumor, we were not closed by law enforcement, the IRS, or the City of San Francisco.

We appreciate your support past, present and future.

MendoHealing, the dispensary, was launched by David Moore, a Fort Bragg cultivator in late 2003. He figured his protection under state law was as a “primary caregiver” to documented patients, meaning he was safer selling to patients directly than through an existing dispensary. He leased and renovated a storefront on Lafayette Street near Howard between 11th and 12th Streets. By eliminating the middleman, MendoHealing pushed prices down from $55 to $40/eighth-ounce for high grade. They also gave small quantities away to those who said they had no money. African Americans, many of them seemingly able-bodied young men, made up a large percentage of the MendoHealing clientele. “Most dispensaries get favored by this or that group for whatever reason,” says Moore, “If young black men favored MendoHealing it’s because they were treated with respect.” Lines formed outside the storefront, causing the neighbors to question the impact of MendoHealing on their quality of life, property values, etc. The neighbors made formal complaints and Moore tried to accommodate them. He ended the lines-on-the-street problem by cutting off free medicine to the poor and raising his prices. He employed three personable security types to prevent subdistribution and loitering on Lafayette St. All to no avail. A determined subset of Lafayette St. residents sought a temporary restraining order on the grounds that MendoHealing didn’t have a conditional-use permit to be in business. Moore says he didn’t get the message left on an answering machine notifying him he had 24 hours to oppose the order. Few, if any, San Francisco cannabis dispensaries have conditional use permits (granted after public hearings) to operate. Many, if not all, have neighbors who wished they’d locate elsewhere.

FRED GARDNER can be reached at: fred@plebesite.com

 

Fred Gardner is the managing editor of O’Shaughnessy’s. He can be reached at fred@plebesite.com

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