ARE POT CLUBS LEGAL? IT'S HAZY
Despite feds' right to crack down, medical marijuana in California seems safe for now
San Francisco -- Four months after the Supreme Court upheld the right of the federal government to crack down on the sale and use of medical marijuana, California's estimated 150,000 medical marijuana patients are still puffing freely.
Nellie, the so-called bud-tender at the Alternative Herbal Health Services medical marijuana dispensary here, tucked some cannabis into a pipe recently and lit up. Reaching across a display case holding marijuana brownies, she passed the pipe to Leather Webb, 51, who took a hit and handed the pipe to three guys relaxing on a couch.
Leaning against a wall and exhaling a cloud of pungent smoke, Webb said marijuana eases the residual pain from 15 surgeries on her left leg, which was damaged by polio.
"I was on 100 milligrams of morphine twice a day," she said. "I was zombied. I got my cannabis to take me off of it."
As they smoke, the air grows as hazy as the complicated legal saga of medical marijuana. When California voters passed Proposition 215 in 1996, medical marijuana became legal under state law but remained illegal under federal law. Federal authorities have always had the right to arrest and prosecute people using marijuana for medical reasons in the 10 states that have passed laws allowing such use.
California's law is considered among the most liberal in the nation.
In San Francisco, federal agents largely had stayed away from 34 marijuana dispensaries in the city until this past summer, when the Drug Enforcement Administration closed three clubs, as some of the dispensaries are known, and charged 19 people with using the clubs as drug-trafficking and money-laundering fronts for organized crime.
More than 9,309 cannabis plants with an estimated street value of $5 million were seized from the clubs and associated warehouses.
The DEA said the raids, part of Operation Urban Harvest, were the culmination of a two-year investigation and were not related to the Supreme Court decision.
While some in the medical marijuana community here say the raids and the Supreme Court decision have made them nervous, few expect the DEA to launch an all-out assault against the dispensaries. For its part, the San Francisco Police Department has a policy of not entering the clubs.
"The clubs are not being raided, but people are scared," said Hilary McQuie, a spokeswoman for Americans for Safe Access, an Oakland-based coalition.
Ethan Nadelmann, founder and executive director of the Drug Policy Alliance, said a ramped-up federal assault on medical marijuana is unlikely, given that California is a politically powerful state led by a Republican governor, Arnold Schwarzenegger.
"For the feds to come into a state of a Republican governor who has explicitly said he supports medical marijuana and start busting people--to tromp state and local rights and a law that is supported by 70 percent of the people--would be a particularly defiant thing to do," Nadelmann said.
At the local DEA office, the talk is of going after major dealers.
"We investigate large traffickers," said Javier Pena, special agent in charge at the agency's San Francisco office. "We're not after the users, the sick people, the dying people."
For some law-enforcement officers, medical marijuana has presented a tricky legal situation. California's law differs from the federal law, county district attorneys have varying stances about whether medical marijuana cases should be prosecuted, and each county can set its own limits about how much marijuana patients and caretakers may possess, as long as it's no less than the 8 ounces allowed by the state.
A patient may legally possess 3 pounds of medical marijuana in Santa Cruz County and then travel with the marijuana to Fresno County, where the limit is 8 ounces. "Clearly, we're frustrated," said Fresno County Assistant Sheriff Jeff Hollis. "The state attorney general's office has stated that the medical marijuana law is still in force, yet we have a Supreme Court decision that says it's illegal.
Law-enforcement officers are walking a tightrope: Whose law do you apply?"
With marijuana dispensaries remaining apparent fixtures in San Francisco's neighborhoods, the city is for the first time preparing to regulate the location and licensing of the clubs, which serve 7,500 residents who carry medical marijuana authorization cards provided by the San Francisco Department of Public Health. A patient must have a doctor's recommendation to obtain the card. Legislation, which is expected to be put to a vote next month by the city's Board of Supervisors, will seek to resolve issues such as loitering, double-parking, noise, violent crime and the proliferation of clubs.
"I don't think there's anybody who wants to see patients who need medical marijuana being prevented from getting it," said Supervisor Sean Elsbernd, whose district includes two of the three clubs that were closed by the DEA. But, he added, "there's concern that some of the patients are turning around and selling it to kids."
Capt. Tim Hettrich, head of the narcotics and vice division of the San Francisco Police Department, said he wouldn't comment on whether medical marijuana has ended up on the street.
California also has the most liberal definition of who qualifies for treatment, said Nadelmann of the Drug Policy Alliance.
The law calls for "seriously ill Californians" to have access to marijuana for use in the treatment of "cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief."
According to a 2000 report from the California chapter of the National Organization for the Reform of Marijuana Laws, 40 percent of medical marijuana is used to treat chronic pain, 29 percent is for AIDS or HIV-related treatment, and 15 percent is used to treat mood disorders, with the remainder in all other categories.
Under California law, doctors have wide discretion in authorizing use of marijuana. Nadelmann says this is no different from the discretion doctors have in prescribing traditional pharmaceuticals.
"We're increasingly living in a society where what's medical and what's not is unclear," Nadelmann said. "What do you call Viagra and other pharmaceuticals? How does marijuana relate to Ritalin or Prozac?"