Marijuana laws a judgment call for cops, DA

By Reggie Ellis

Last week's U.S. Supreme Court ruling seems to have made the issue of medical marijuana more confusing than ever.

According to experts, the 6-3 decision in [Angel] Raich v. [Attorney General John] Ashcroft upholds both federal and state laws, however, people using marijuana for medical purposes can still be prosecuted by the federal government.

"Although I am disappointed in the outcome of today's decision, legitimate medical marijuana patients in California must know that state and federal laws are no different today than they were [before]," California Attorney General Bill Lockyer said.

"Californians spoke overwhelmingly in favor of medical marijuana by passing Proposition 215, the Compassionate Use Initiative, and that law still stands in our state. Unfortunately, federal law continues to criminalize the use of physician-recommended marijuana medicine. This conflict between state and federal law means that seriously ill Californians will continue to run the risk of arrest and prosecution under federal law when they grow and or they use marijuana as medicine."

In other words, state law applies to state law enforcement and federal laws applies to federal law enforcement. The Attorney General's Office said the laws were written to provide local government with the option of formulating their own policies and procedures regarding the issue. So what does that mean locally?

Carol Turner, assistant district attorney, said Tulare County will continue to look at medical marijuana issues on a case-by-case basis. "No one wants to arrest someone who is seriously ill," Turner said. "I don't think even the federal government will prosecute unless the use exceeds the scope of medical use." At the same time, Turner said people claiming that the medical use is to "deal with the vagaries of life," as one man stated, would still be prosecuted at any level.

Turner said the real risk is for those operating medical marijuana dispensaries, or places where a doctor's recommendation for medical marijuana can be filled. Hillary McQuie, spokeswoman for Americans For Safe Access, a grassroots coalition working to protect the rights of patients and doctors using medical marijuana, said dispensaries are not any more at risk than they were prior to the Supreme Court's decision.

"They are obviously more visible than someone growing it in their own backyard," McQuie said.

One dispensary, operated by United Medical Caregivers Clinic in Ukiah, Calif., said they have closed down their dispensary for fear of federal prosecution. "Drug Enforcement Administration officers have been in a holding pattern until there was a definite decision," said Gabriela Flores, general manager of the organization. "We just couldn't justify putting our patients at risk."

The decision benefits small, rural cities like Exeter that were ready to begin the process of outlining ordinances regulating dispensaries. None of the surrounding cities - Farmersville, Woodlake or Lindsay - had begun that process. Because of the increased risk, it is unlikely that any new dispensaries will pop up, especially in areas where they are unwanted by local officials and the general population.

However, local law enforcement will still have to deal with the issue of people growing their own medical marijuana. Exeter, Farmersville, Woodlake and Lindsay police departments all said they would continue to investigate all reports of marijuana being grown at a private residence. All agreed it would be on a case-by-case basis whether or not someone found in possession of marijuana would be arrested and that all cases would be at the discretion of the DA's office to prosecute.

"It depends on the circumstances and really comes down to common sense," said Chief Bert Garzelli of Lindsay's Department of Public Safety. "If it is an elderly lady with glaucoma who is growing two to three small plants I don't think we'll arrest her. If it is a healthy 20-year-old with 50 plants he will definitely be arrested. Either way, we will investigate and provide the paperwork to the District Attorney's Office. They will make the final decision."

Sgt. Mike Marquez said the Farmersville Police Department is waiting for the DA's office to inform the officers of who to arrest. "The wheels of justice turn slowly and this is a very large and complicated wheel," he said.

Woodlake Police Lt. Ron Hughart said everything will be investigated and forwarded to the DA's office, regardless of the circumstances. "We aren't actively going to go out and look for violators," he said. "But as police officers we are bound by our duties to investigate all cases involving marijuana to see if a crime has been committed. Then it is up to the district attorney."

Lt. Cliff Bush, with the Exeter Police Department, said the burden of proof has, and always will fall, on the person in possession of marijuana. "We will respond to any call regarding possession of marijuana. That has not changed," he said.

The only person protected by both federal and state law are doctors who "recommend" the use of marijuana for chronic pain. Because doctors have no contact with the drug, they cannot be prosecuted for recommending someone use it.

"The ruling only covered commerce, where money is exchanged for marijuana," said McQuie. "Doctors are protected because the Supreme Court refused to hear arguments about doctor recommendations," she said, which means the 9th Circuit Court's ruling allowing doctors to recommend the drug's use was upheld.

Flores said a bill to change the federal definition of marijuana from an illegal substance to that of a prescription was introduced in the House of Representatives on May 4. Authored by Reps. Barney Frank (D-MA), Ron Paul (R-TX), Dana Rohrabacher (R-CA), Sam Farr (D-CA) and more than 25 other Members of Congress, the “States’ Rights to Medical Marijuana Act (HR 2087),” is a bill that would permit states to allow the use of marijuana for medicinal purposes.

The bill is limited to medicinal use of marijuana with a doctor's approval. Currently, several states have laws permitting the medical use of marijuana with a doctor’s written permission. But the U.S. Supreme Court has interpreted federal law as superseding state laws in this area. Therefore, most states have found it impossible to implement their own medical marijuana laws.

“When doctors recommend the use of marijuana for their patients and states are willing to permit it,” Frank said. “I think it’s wrong for the federal government to subject either the doctors or the patients to criminal prosecution. Nothing in this proposal makes marijuana more available for the general population. Conservatives often profess their support for states’ rights, and if they truly believe in states’ rights, they should support this bill,” Rep. Frank added.

The bill will be reviewed by the House sometime in the next week.

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