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In a 2001 case involving a patient named Babu Lal the San Francisco Police Department articulated a policy of not returning marijuana to patients, even if it had been confiscated illegally. “Federal law supercedes state law,” explained Lt. Kevin Cashman, head of the narcotics squad (and now a captain in charge of Northern Station), as if he truly wished he could accommodate Mr. Lal. “I can’t order my officers to commit a crime. It would be illegal under federal law for us to physically hand over somebody’s marijuana. It doesn’t matter if he’s a bona fide patient…”
The policy remained in place, as they say, until Friday, Oct. 29, when SFPD Lt. Ed Martinez handed over to Joseph Heid, 44, a bona fide patient, four ziplock bags containing a total of about 20 grams of marijuana -a two-weeks’ supply Heid had purchased (along with some edibles that were not returned) at a local dispensary on the afternoon of July 7. Heid’s medicine had been confiscated by the highway patrol that evening after he was stopped for driving erratically on US 101. Heid doesn’t fault the CHP for stopping him. He acknowledges being in a hurry, changing lanes abruptly, and maneuvering his 1999 GMC suburban in a way that could be mistaken for erratic but was actually, he says, “precision driving.”
An officer told Heid she smelled marijuana in the car. He produced an S.F. Department of Public Health card confirming his status as a patient. “The officers said they had never seen such a card,” recalls Heid. He told them that indeed he had smoked marijuana in the car earlier in the day, after driving to a theater and parking in the lot. Since then he had seen a movie and eaten dinner in a restaurant; about four hours had elapsed and he was unimpaired.
Three or four CHP cars had pulled up, according to Heid. “They seemed confused about what to do. They were inclined to think I was okay, except the supervisor, who was adamant about ‘zero-tolerance.'” He was given a field sobriety test, which he assumed he passed, but then he was taken to the city jail at 850 Bryan and charged with driving under the influence of a drug. He provided a urine sample that would subsequently reveal no recently ingested marijuana or alcohol in his system.
Throughout his detention, Heid says, “I was thinking, ‘These people have to go through this and find out that what they’re doing is wrong.’ I turned it around and tried to make it education. I told them: ‘I need it every day, I think I would die without it.’ I use it responsibly at my workplace. I can’t iterate enough how important it is for ITAL the supervisors END ITAL to get on board and understand that there really is medical marijuana, it’s not a hoax, it enables people like me to live and be on an even keel. Ironically, had I been high, I wouldn’t have been driving like that.”
Heid hired defense specialist Omar Figueroa, who arranged for him to plead no contest to a reckless driving charge (not “under the influence” of anything) and then sought the return of his modest stash, which the CHP had brought to SFPD for analysis and custody. On October 5 Figueroa filed a motion asking the Superior Court to order the return of Heid’s property.
Under the California Constitution, no state agency has the power to “refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement… unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal or federal regulations.” Figueroa pointed out that no appellate court had determined that enforcing Prop 215 would violate federal law.
“Contrary to a somewhat common misconception,” Figueroa wrote, “the opinion of the US Supreme Court in the civil case of U.S. v. Oakland Cannabis Buyers’ Cooperative did not consider -much less decide- the question of whether federal or federal regulations prohibit the enforcement of Proposition 215 (codified as Health & Safety Code 11362.5).” Justice Stevens’s dissent “took pains to make clear that the only question presented was whether the federal Controlled Substances Act countenanced a medical necessity defense.”
What Figueroa called “a somewhat common misconception” about the scope of the Supreme Court’s ruling in the OCBC case can be seen as a self-fulfilling prophecy by the media, whose inaccurate headlines and soundbites proclaimed “pot illegal,” and by police, sheriffs and DAs who resented Prop 215 as an infringement on their power over the citizenry and used the OCBC ruling as an excuse to ignore it.
Figueroa cited the Ninth Circuit’s ruling in Raich v. Aschcroft “that an individual who possesses and cultivates marijuana for medical use in accordance with California law does NOT violate federal law provided he or she does not engage in interstate commerce.”
For good measure, Figueroa cited 885(d), the section of the federal controlled substances act that allows undercover narcs to handle illicit drugs. If 885(d) rings a bell, you might be recalling it as the basis on which the Oakland City Council authorized Jeff Jones’s club to distribute cannabis. Ed Rosenthal claimed protection under 885(d), arguing that he’d been deputized by Jones to grow starter plants for distribution to patients.
Figueroa’s request for an order directing SFPD to return Joseph Heid’s marijuana was heard by Judge Donald J. Sullivan on the morning of Oct. 26. When the matter was called, Assistant District Attorney Paul Kelly requested a delay so that a police department lawyer, John Shanley, could be brought in to defend the no-return policy. Shanley could not be found, however, and when the hearing resumed, Kelly, a fair-minded prosecutor more concerned about the Red Sox’s chances than SFPD’s prerogatives, raised no objections. Judge Sullivan signed the order and Figueroa immediately handcarried it up to “Police Legal” on the fifth floor. Lt. Martinez glanced at the paperwork, then did a take. “This will take a few days,” he said. “fine,” said Omar, smiling broadly. Scotch-taped to an adjoining wall was a frayed, yellowing photocopy of a newspaper story headlined “Citizens Can’t Get Pot Back.” It referred to a ruling by Judge Wallace Douglass in the Lal case. Martinez had posted it to save himself the trouble of explaining the situation to disappointed lawyers and citizens. It is now outdated
“The Heid case is a victory for justice and compassion,” says Figuera. “Cannabis was recognized as lawful medicine by Judge Sullivan, and both the CHP and SFPD respected a patient’s need and right to have it.”
Heid used his medicine soon after retrieving it. “Seemed to be in perfect condition,” he reports. “A bit smashed, as if it had been under a ton of paperwork.”
FRED GARDNER can be reached at email@example.com