California Highway Patrol Agrees to Follow State Law

The California Highway Patrol issued an “Update on Medical Marijuana Enforcement Policy” August 22 directing officers not to confiscate marijuana from documented medical users in possession of eight ounces or less (and in some cases, more). The new policy was drafted with input from the attorney general and the governor’s office. It comes in response to a suit filed in February by Americans for Safe Access on behalf of patients whose marijuana had been seized by the CHP.

The CHP policy revision is a major victory for California medical marijuana users. County sheriffs and city police forces are now expected to revise their own policies regarding confiscation of medical marijuana. Agencies that don’t will face legal challenges, says Kris Hermes of ASA.

The new CHP policy recognizes that a letter of approval from a doctor is as valid as a state-issued i.d. card in establishing a medical-user’s bona fide. Officers coming upon marijuana during a traffic stop are advised that if the amount “is within the state limits designated under SB 420 (eight ounces of dried marijuana, or the plant conversion, and no more than six mature or 12 immature marijuana plants) the individual is to be released and the marijuana is not to be seized. The state (SB 420) limit of eight ounces does not apply if there is a higher limit in the locality in which the individual is stopped. Authorized local limits supercede the state limit.”

Over the past year ASA received 457 complaints by phone from Californians whose cannabis had been seized during an encounter with law enforcement. More than a quarter of the confiscations had been made by CHP officers, according to Hermes, who along with staffer Elliott Caldwell fielded most of the calls. There was a recurring pattern: a routine traffic stop, an officer asking “Do you have any drugs in the car?,” the confident citizen producing proper paperwork, and the officer saying it didn’t apply because of federal law, then citing or arresting them and confiscating their herb.

A confiscation victim named Jason Fishbain obtained the CHP’s written policy authorizing confiscations. With this in hand, ASA decided to sue. Attorney Joe Elford drafted the complaint, which cites numerous violations of the California Constitution and seeks, among other things, an injunction against confiscation of marijuana from documented patients who possess an amount allowable under state law. Gov. Arnold Schwarzenegger, Attorney General Bill Lockyer, and CHP Commissioner Mike Brown were named as co-defendants.

Soon after the Raich decision, which came down June 6, Lockyer issued a “Bulletin to All California Law Enforcement Agencies” advising that “California’s Compassionate Use Act is not preempted by the federal Controlled Substances Act as a result of the decision in Raich… therefore the use of medicinal marijuana under state law is unaffected by that decision. Accordingly, California state and local peace officers may not refuse to abide by the provisions of California’s Compassionate Use Act on the basis that this Act conflicts with federal law.”

It remained to be seen whether the CHP, which reports to the governor, would comply with Lockyer’s directive. Says Joe Elford, “The CHP didn’t change their policy until their opposition to the motion for a preliminary injunction was due. They didn’t fold easily. The fact that they did ultimately fold is going to send a clear signal to other law enforcement that it’s not a position worth upholding. It’s no more constitutional for the Ukiah sheriff’s office to seize marijuana without probable cause to believe that a crime has been committed than it is for the CHP.” Elford said that law enforcement agencies that don’t follow the CHP precedent will “get hit with lawsuits, too… The LAPD is on our radar screen.”

Credit is due Jason Fishbain, who exposed the CHP’s illegal policy, and to ASA -the staffers who handled the calls and the organizers, Steph Sherer and Hilary McQuie, who recognized the need for an infrastructure that would enable rank-and-file medical marijuana users to express their needs and get some action.

Raich Case Isn’t Over

Angel Raich and Dianne Monson have not finished their legal fight. The U.S. Supreme Court’s recent ruling only dealt with the federal government’s authority under the Commerce Clause of the Constitution to outlaw the production and consumption of cannabis for personal medical use within California. The Supremes remanded the case back to the U.S. Ninth Circuit Court of Appeal, which now must consider claims by Raich-Monson that were not addressed previously (when the appeal court agreed with their Commerce Clause argument).

Attorney Robert Raich says the remaining arguments incude: o “10th Amendment federalism. Meaning: states have the right to make and enforce their own laws without undue interference from the federal government. o “Fundamental rights under the 5th Amendment. The right to ameliorate pain. The right to bodily integrity. The right to the sanctity of the doctor-patient relationship. The right to life (which is explicit in 5th Amendment). o “9th Amendment protection. Rights not specifically given to the federal government are held by the people and the states.” o “The concept of liberty per se based on Lawrence v. Texas, a 2003 case which said that states could not outlaw homosexual sodomy. o “Medical necessity for individual patients (as opposed to the medical-necessity issue before the Court in the Oakland Cannabis Buyers Co-operative case in 2001).” Raich notes that Justice John Paul Stevens wrote a concurring opinion in the OCBC case “that explicitly left open the question of individual medical necessity.”

An Unusual Apology From Justice Stevens

“Apology: something said or written in defense or justification of what appears to others to be wrong.”

-Webster’s New International Dictionary, 2nd Edition

U.S. Supreme Court Justice John Paul Stevens has issued an apology for the majority opinion he wrote in the Raich case. Addressing the Clark County, Nevada, bar association August 18, Stevens acknowledged that his votes in four cases decided last session would cause real harm to large groups of people. “In each I was convinced that the law compelled a result that I would have opposed if I were a legislator,” he revealed.

…The fourth case in which I was unhappy about the consequences of an opinion that I authored presented the question whether the use of locally grown marijuana for medicinal purposes pursuant to the advice of a competent physician may be punished as a federal crime. The uncontradicted evidence in the record indicated that marijuana did provide important therapeutic benefits to the two petitioners, that no other medicine was effective, and that without access to that drug one of the petitioners may not survive.

“Moreover, their cultivation and use of marijuana for health reasons was perfectly lawful as a matter of California law. I have no hesitation in telling you that I agree with the policy choice made by the millions of California voters, as well as the voters in at least nine other States (including Nevada), that such use of the drug should be permitted, and that I disagree with executive decisions to invoke criminal sanctions to punish such use. Moreover, as I noted in a footnote to our opinion, Judge Kozenski has chronicled medical studies that cast serious doubt on Congress’ assessment that marijuana has no accccepted medical uses.
Nevertheless, those policy preferences obviously could not play any part in the analysis of the constitutional issue that the case raised. Unless we were to revert to a narrow interpretation of Congress’ power to regulate commerce among the States that has been consistently rejected since the Great Depression of the 1930s, in my judgment our duty to uphold the application of the federal statute was pellucidly clear.

It will be up to St. Peter to judge whether self-imposed impotence is a valid defense in the case of J.P. Stevens.

FRED GARDNER can be reached at:






We published an article entitled “A Saudiless Arabia” by Wayne Madsen dated October 22, 2002 (the “Article”), on the website of the Institute for the Advancement of Journalistic Clarity, CounterPunch, (the “Website”).

Although it was not our intention, counsel for Mohammed Hussein Al Amoudi has advised us the Article suggests, or could be read as suggesting, that Mr Al Amoudi has funded, supported, or is in some way associated with, the terrorist activities of Osama bin Laden and the Al Qaeda terrorist network.

We do not have any evidence connecting Mr Al Amoudi with terrorism.

As a result of an exchange of communications with Mr Al Amoudi’s lawyers, we have removed the Article from the Website.

We are pleased to clarify the position.

August 17, 2005


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