AIDS Treatment News #287, January 23, 1998
Fred Gardner and John S. James

The six clubs named in the federal suits are the Cannabis Cultivators Club in San Francisco, Flower Therapy in San Francisco, Marin Alliance for Medical Marijuana in Fairfax, Oakland Cannabis Buyers' Cooperative, Santa Cruz Buyers' Club, and Ukiah Buyers' Club. Proposition 215 changed the California Health and Safety code to legalize possession and cultivation by "seriously ill" Californians using marijuana with the approval of a physician; but the federal prohibitions remained in place. The usual federal practice has been to leave marijuana prosecution to the states unless the quantities are very large.

Closing the clubs, either by state or federal action, would mean that persons with a documented need would still have a legal right to use marijuana for medical purposes under California law--but not under Federal law; and there would be no place where they could legally obtain it. This is a serious problem because even though most social users can find marijuana relatively easily, many patients who need it for medical purposes are not part of that culture, and often have to seek the drug from strangers on the streets, which creates anxiety, costs more time and money, and makes consistent medication virtually impossible.

California Attorney General Lungren has advised local law enforcement officers to make marijuana arrests regardless of Proposition 215--meaning that persons who are seriously ill must still be jailed, and must arrange and pay for an "affirmative defense" establishing that their use was legal under Proposition 215 (which was approved by California voters on November 5, 1996 despite strong opposition from Lungren and Drug Czar Barry McCaffrey).

Background: Federal Attack against Medical Marijuana in California

The federal authorities revealed their first plan on December 30, 1996, at a widely covered press conference. McCaffrey, flanked by U.S. Attorney General Reno and U.S. Health and Human Services Secretary Donna Shalala, warned that a doctor's recommendation of marijuana would "lead to administrative action by the U.S. Drug Enforcement Administration to revoke the practitioner's registration... This isn't medicine," he added, "this is a Cheech and Chong show." Lungren thanked McCaffrey and Reno for "quick action."

But the McCaffrey-Reno-Shalala press conference alarmed many members of the medical community. A January 30 editorial in the NEW ENGLAND JOURNAL OF MEDICINE--"Federal Foolishness and Marijuana," by Jerome Kassirer, M.D., the editor-in-chief derided the U.S. government's policy as "misguided," "hypocritical," "out of step with the public," and "inhumane," and called for reclassifying marijuana from Schedule 1 (drugs of abuse with no therapeutic value) to Schedule 2 (which could allow prescription use, as with morphine).

In February Conant v. McCaffrey, a class-action lawsuit on behalf of all California doctors and patients who discuss marijuana as a treatment option, was filed to prevent the government from prosecuting or threatening to punish them. The suit, assigned to U.S. District Judge Fern Smith, charged that the feds "have intruded into the physician-patient relationship, an area traditionally protected from government interference."

In April Judge Smith (a Reagan appointee) granted a preliminary injunction "limiting the government's ability to prosecute physicians, revoke their prescription licenses, or bar their participation in Medicare and Medicaid because they recommend medical use of marijuana." In a 43-page opinion she wrote, "The First Amendment allows physicians to discuss and advocate medical marijuana, even though use of marijuana itself is illegal... The government's fear that frank dialog between physicians and patients about medical marijuana might foster use does not justify infringing First Amendment freedoms... Defendants may only prosecute physicians who recommend medical marijuana to their patients if the physicians are liable for aiding and abetting or conspiracy under these statues."

It appears that the feds adopted their current strategy (close down the clubs) only after the Fern Smith decision nixed Strategy A (intimidate the doctors). Smith ruled in April. The Justice Department began its investigation of the clubs--sending undercover agents in to make purchases--in May, according to the court documents filed January 9, 1998.

All the clubs require documentation of medical need for marijuana, and they verify its authenticity by calling the physician. According to Dennis Peron, founder and maitre 'd of the San Francisco Cannabis Cultivators Club, the U.S. Drug Enforcement Administration not only used false documentation, but also set up a special phone line where a narcotics agent pretended to be in the medical office, and provided the "verification" requested.

Attorney Bill Panzer, who represents the Oakland and Marin clubs, says, "The feds don't want to appear heavy handed. They are not threatening anyone with jail. They are seeking an order saying the club has to shut down. Even if they are successful, and a person violates that order, under the statute that person is entitled to a jury trial. Which means that at some point we'll get to be in front of a jury."

Four of the six federal cases are scheduled to be heard February 20. Panzer thinks there is a chance that one of the judges from whom injunctions are being sought will consider "the real question--the medical efficacy of marijuana." His goal in the legal arguments that will now ensue is to somehow promote a trial in which "the question of whether marijuana is good or bad can be argued in a district court and the whole history of marijuana prohibition can be cited to show that the government has acted arbitrarily and capriciously and that the Controlled Substances Act, as it relates to marijuana--especially medical marijuana--has no basis in science, no basis in logic, no basis in rationality."

Reminded that the government has, over the years, assiduously avoided allowing this history to be reviewed in open court, Panzer says, "Show me any other time the government has ever filed for an injunction to close down a medical marijuana dispensary?"

Background on State Attack

California Attorney General Lungren, who is also running for governor as a Republican this year, sought to impose his "narrow interpretation" of Proposition 215 from the day it passed. At 12:01 a.m. November 6, he announced (by fax) an "emergency all-zone meeting" of the state's police chiefs, sheriffs and district attorneys. The meeting, closed to the press and public, took place in Sacramento on December 4, 1996. Lungren's interpretation is that Prop 215 did not legalize transportation, sales or buyers' clubs. Doctors should be forced to testify, he advised, "that the benefits of marijuana use for the specific patient clearly outweigh the risks to the patient--which is believed to be a scientifically unsupportable finding." Lungren announced he would travel to Washington December 12 to meet with U.S. Attorney General Reno "to ascertain the federal government's detailed prosecution plans."

Lungren's case against the clubs stems from an investigation by state Bureau of Narcotics Enforcement agents against one cannabis club, run by Dennis Peron, in the spring of 1996; this investigation culminated in a raid August 4, and a civil injunction that halted operations. The raid, on the eve of the Republican convention, was widely covered in the media. A Yes-on-215 headquarters was located in the same building as the cannabis club, 1444 Market Street in San Francisco, and Peron protested that the state narcotics agents violated the election laws by examining campaign records.

The San Francisco club was allowed to re-open in January 1997 after Superior court Judge David Garcia ruled that the passage of Prop 215 entitled Dennis and his associates to provide marijuana "for the personal medicinal use of persons who have designated the defendants as their primary caregiver pursuant to California Health and Safety Code S11362.5."

Lungren appealed Garcia's ruling, and claimed victory December 12, 1997, when two of the three judges on a First District Court panel held that cannabis buyers' clubs are not caregivers under Prop 215, and therefore have no legal right to distribute marijuana. Lungren immediately sent off a letter (December 15, 1997) to the district attorneys of California's 58 counties suggesting that they consider cracking down on clubs within their jurisdiction. The District Court ruling became effective on January 12, 1998.

Peron has asked the state Supreme Court to review the appeals court ruling. If they take the case, the District Court ruling is vacated (while we await the Supreme Court ruling). If the California Supreme Court denies review--which they usually do--the appeals court ruling becomes final; but Peron can still return to Superior Court in San Francisco to argue that the ruling was based on evidence before Judge Garcia that did not address the club's authentic caregiver role as a support group, social scene, provider of wholesome food, etc. He can introduce new evidence and seek a different ruling on the club's caregiver status.

Comment

All of the medical marijuana clubs in California will not necessarily have to close even if the federal and California governments win the legal disputes currently before the courts. At this time the federal action does not name all the clubs. And so far Lungren has urged local officials to do their own raids, instead of conducting them all from his office in Sacramento. Most of the medical marijuana clubs are on good to excellent terms with their local political and law-enforcement officials; otherwise they would never have opened their doors.

It has always been known, however, that Proposition 215 cannot provide a defense against federal marijuana laws, which do not recognize medical use except for research. (The federal government does have its own medical marijuana program, apparently using the research exception, but only eight patients are currently enrolled and no new people can be accepted.)

The public has strongly supported legitimate medical use of marijuana for years, whenever given a chance to vote or express its opinion in surveys; almost all of the opposition is from government officials and anti-drug professionals. Meanwhile, the scientific case for medical use keeps growing stronger [see "Marijuana, Inflammation, and CT-3 (DMH-11C): Cannabis Leads to New Class of Antiinflammatory Drugs" in this issue]. Far more dangerous psychoactive drugs, like morphine, are successfully allowed in medical use. Somehow marijuana has become a symbolic or political hard line to be maintained by anti-drug believers regardless of human cost. The costs will mount until the public can organize itself to insist that those who urgently need this medicine can obtain and use it legally.

[Fred Gardner is managing editor of SYNAPSE, the weekly newspaper at the University of California San Francisco Medical Center. He is a former editor of SCIENTIFIC AMERICAN.]

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