Monday, November 29, 1999

Petition to the

PLACER COUNTY

BOARD OF SUPERVISORS

Supervisor Bill Santucci, District 1 (Roseville)
Supervisor Robert Weygandt, District 2 (Lincoln)
Supervisor Harriet White, District 3 (Auburn)
Supervisor Jim Williams, District 4 (Loomis)
Supervisor Rex Bloomfield, District 5 (Meadow Vista)

for implementation of

THE COMPASSIONATE USE ACT OF 1996




WHEREAS The People of California voted on November 6, 1996 to pass Proposition 215 now known as The Compassionate Use Act of 1996 or 11362.5 H&S Code which is specifically intended to exempt medical marijuana patients from criminal prosecution for possession or cultivation.

WHEREAS we have patiently waited three years for that law to be implemented and followed.

WHEREAS no challenge has been filed seeking to invalidate the law on the basis of a conflict with federal laws or regulations, or for any other reason.

WHEREAS throughout Placer County, lawfully documented patients and their care givers continue to be arrested in alarming numbers. Arrested and charged, they are forced to make bail, hire counsel, lose their medicine and other property and appear in court at trial so that they can raise an "affirmative defense" under the Compassionate Use Act. This practice is intolerable and anything but compassionate.

WHEREAS the Constitution of the State of California, Amendment III, Section 3.5 requires elected officials to uphold The Compassionate Use Act as follows:

"An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power:

(a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional;

(b) To declare a statute unconstitutional;

(c) To declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations."

WHEREAS H Section 11362.5. states: "(a) This section shall be known and may be cited as the Compassionate Use Act of 1996.

(b) (1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:

(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.

(B) To ensure that patients and their primary care givers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.

(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.

(2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for non medical purposes.

(c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.

(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary care giver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.

(e) For the purposes of this section, "primary care giver" means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person."

WHEREAS the Ninth Circuit Court of Appeals has ruled that patients who are seriously ill, are legally entitled not just under the new state law and international law, but entitled under Federal law to use, possess and distribute medical marijuana: "In short, OCBC (The Oakland Cannabis Buyers Cooperative)presented evidence that there is a class of people with serious medical conditions for whom the use of cannabis is necessary in order to treat or alleviate those conditions or their symptoms; who will suffer serious harm if they are denied cannabis; and for whom there is no legal alternative to cannabis for the effective treatment of their medical conditions because they have tried other alternatives and have found that they are ineffective, or that they result in intolerable side effects." WHEREAS California's Attorney General Bill Lockyer sent a letter to U.S. Attorney General Janet Reno saying: "As you know, the voters in my state have endorsed the medicinal use of marijuana and the court's decision holding that a citizen may present evidence that use of marijuana, under certain narrow conditions, may be a lawful exception to the federal drug laws is consistent with that expression of their will." THEREFORE we respectfully petition the Placer County Board of Supervisors to demonstrate the leadership which they have shown in so many other community oriented endeavors and adopt the following guidelines for implementation of the Compassionate Use Act of 1996:

1. STOP ARRESTING SICK PEOPLE. Don't authorize budgets or federal grants that will be used against sick people. Adopt and implement the Oakland Guidelines to protect sick people from arrest. These are the only medical marijuana guidelines that were created by police, patients and physicians working together to establish limits based upon real world needs and FDA standards. If police and patients are happy with these guidelines in Oakland, it should certainly work in Placer County as well.

2. STOP TREATING SICK PEOPLE LIKE CRIMINALS. Fund a non-invasive voluntary patient/care givers identification cards, managed by county or state health departments, which protects the privacy of patients and cannot be accessed by law enforcement agencies.

3. STOP FORCING SICK PEOPLE INTO THE BLACK MARKET. Demand that the federal government take action on the petition filed by Jon Gettman with the Drug Enforcement Administration on July 27, 1995, and reschedule marijuana from a Schedule I to a Schedule III. That action alone would solve many of the problems and concerns voiced by law enforcement and allow patients to go directly to their pharmacist to obtain their medicine.

4. STOP PROSECUTING SICK PEOPLE AND THEIR CARE GIVERS. Elected officials must provide legal protection for sick and dying patients from illegal arrests and prosecutions. To uphold the law, officials must see to it that the Grand Jury investigate any and all complaints by medical marijuana patients or care givers regarding violations of the Compassionate Use Act.
 
 

Respectfully submitted,

WE THE PEOPLE of California, on behalf of the medical rights of patients to have access to their medicine, as guaranteed under The Compassionate Use Act of 1996, The United States Constitution, The Single Convention Treaty, The United Nations Declaration of Human Rights, The Geneva Convention, and as affirmed by our individual names listed below:
 
 

Steve Kubby, <steve@kubby.org>, Olympic Valley, CA
Michele Kubby, <michele@kubby.org>, Olympic Valley, CA
Anna Boyce, R.N. <atboyce@ibm.net>, Mission Viejo, CA
Tom O'Connell MD, <tjeffoc@sirius.com>, San Mateo, CA
Michael Aldrich Ph.D., <MCAGiraffe@AOL.com>, S.F., CA
Mike Baldwin, <baldwin777@hotmail.com>, Roseville, CA

Jim Rosenfield, <jnr@insightweb.com>, Culver City CA
M. Diatalevi, <michael@webuyparts.com>, Hntngtn Bch, CA
David Jack, <jacks@goldrush.com>, Angels Camp, CA
Al Gilmore, <overedge@sohumm.net>, Redway, CA
Phil Mosby, <jawanda@ltol.com>, Kings Beach, CA.
Gail Lightfoot, <GkLtft@aol.com>, Pismo Beach, CA
Kim Root, <rlroot@prodigy.net>, Westminster, CA 92683
R. L. Root, <rlroot@prodigy.net>, Westminster, CA 92683
Dominic DeLucia, <DOMofCAL@aol.com>, Trabuco Can, CA
Gordon Wilson, <dwilson836@aol.com>,Laguna Niguel, CA
Bill Pasbach, <<mtnsapien@hotmail.com>, Huntersville, NC
Hal Womack, <womack@breve.coffeenet.net>, San Fran.,CA
Bud Hagstrom, <quaser@yahoo.com>, Ventura, CA
Gary Barrett, <trichome34@hotmail.com>, Victorville CA
A. Solorio-Barrett, <trichome34@hotmail.com>, Victorville CA
Charles Mull, <ltmull@castles.com>, Roseville, CA
F. Michael Wells, <painter@sirius.com>, Oakland, CA 94607
T. R. Markham, <painter@sirius.com>, Oakland, CA 94607
Howard R Olson, <Holson1000@aol.com>, Concord, CA
Rose Ann Fuhrman, <rose@sonic.net>, Santa Rosa, CA
Yasa Henson, <yasa@wcmonetwork.net>, Davis, CA
Trebor Healey, <Trebhead@aol.com>, Los Angeles, CA
Geoff Olsen, <grim@jps.net>, N. Hollywood, CA
Jane Weirick, <budfairy@budland.com>, San Francisco, CA
Wayne Justmann, <budfairy@budland.com>, San Francisco, CA
Rev. Randelyn Webster, <budfairy@budland.com>, SF, CA
Gary Farnsworth, <budfairy@budland.com>, San Francisco, CA
Mark Renfro, <mark210@gateway.net>, Mission Viejo, CA
Rusty Stuart, <nzane1@netzero.net>, Rohnert Park, CA
David C. Williams, <gear2000@lightspeed.net>, Tehachapi CA
Steven Blake, <stevenblake@excite.com>, Sacramento, CA
Melissa Barrett, MelissaB56@aol.com, Los Gatos, CA
Malvina Cooper, <MALVINAQ@aol.com>, Petaluma, CA
Dennis Triglia, <dtriglia@home.com>, San Diego, CA
Robert Deitch, <bdeitch@loop.com>, North Hollywood, CA
Mark Hilgenberg, <hilgi@msn.com>, Oak Park, CA
Jonathan Richter <jonrichter@email.msn.com>, Fresno, CA
Jeff W. Jones, <jeffj@rxcbc.org>, Oakland, CA
Jerry Dunn, <JERRY@bnis.net>, Tehachapi, CA
Dale Gieringer, <canorml@igc.apc.org>, San Francisco CA
Susanna Vos, <suevos@catskill.net>, SF CA
Michelle Aldrich, <MCAGiraffe@AOL.com>, S.F., CA
Matt Coker, <MCoker@ocweekly.com>, Costa Mesa, CA
Tarian Liber <liberism@hotmail.com>, Palo Alto
Starchild, <dreamer@ziplink.net>, S.F., CA
Brian Wallace, <somawally@earthlink.net>, S.F., CA
Dave Herrick, <pajutadave@hotmail.com>, Orange County, CA
Gary Pietila, <sandiegan@switchboard.net>, Ramona, CA
Betsy Pietila, <sandiegan@switchboard.net>, Ramona, CA
Tim Pietila, <sandiegan@switchboard.net>, Ramona, CA
Amber Pietila, <sandiegan@switchboard.net>, Ramona, CA
Don DeGroat, <EWCHIEF@aol.com>, Modesto, CA
Linda DeGroat, <EWCHIEF@aol.com>, Modesto, CA
Penny Dailey <pennydailey@earthlink.net>, La Crescenta, CA
Donna C. Lee <donnaclee@netscape.com>, San Diego, CA
Bob Ames <bob@rush.com> Rio Linda CA
David Bergland <dpbergland@earthlink.net>, Costa Mesa, CA

COUNTY DIRECTORS:

ALAMEDA: Jeff Jones <jeffj@rxcbc.org>
CALAVERAS: David Jack, <jacks@goldrush.com>
FRESNO: Jonathan Richter <jonrichter@email.msn.com>
HUMBOLDT: Al Gilmore <overedge@sohumm.net>
LOS ANGELES: Jim Rosenfield <jnr@insightweb.com>
MADERA: Jonathan Ira Zwickel <jonathanira@thegrid.net>
NEVADA: Carrie Becker <solarquest@jps.net>
ORANGE: Doug Scribner <doug@123abc.net>
PLACER: Steve Kubby<steve@kubby.org>
SACRAMENTO: Steve Blake <stevenblake@excite.com>
SAN BERNARDINO: Gary Barrett <trichome34@hotmail.com>
SAN DIEGO: Dennis Triglia" <dtriglia@vgen.com>
SAN LUIS OBISPO: Jo-D Dunbar <dunbar@thegrid.net>


City Hall One City Hall Plaza Oakland, CA 94612

Office of City Manager Robert C. Bobb City Manager

510-238-33012 fax 510-238-2223




June 23, 1998

Public Safety Committee Oakland City Council Oakland, California

Chairperson Miley and Members of the Committee:

Subject: A Follow Up Report from the Medical Marijuana Working Group regarding the City's Low Law Enforcement Policy towards Medical Marijuana.
 
 

The Medical Marijuana Working Group recommends that this committee adopt a policy, which allows for the possession of a three-month supply of medical marijuana for each patient who grows their marijuana indoors or possesses processed marijuana, or a year supply for patients who grow outdoor marijuana. Medical marijuana caregivers should be allowed to possess the same amount for each patient for whom they can establish legitimate caregiver status.

The Police Department has agreed to implement a process, which does not seize processed marijuana or uproot/destroy plants when a credible claim to medicinal use or caregiver status is made.

BACKGROUND

On February 10, 1998, the Public Safety Committee received a Status Report on City's Implementation of Medical Marijuana Low Priority Policy prepared and presented by the Oakland Police Department. In the relevant part of the report it proposed:

The Police Services Agency implements the low-priority policy as follows:

1.The Police Services Agency does not target medical Marijuana-related activities. The Agency Investigates and becomes involved in marijuana-related activities (1)as a result of citizens complaints, (2) incident to law enforcement activities related to violation of laws unrelated to marijuana activities, or (3) due to public activity involving marijuana that provides probable cause for investigation.

2.Persons who come into contact with law enforcement will not be cited or arrested and marijuana in their possession will not be seized if all of the following conditions are met:

a.The person establishes medicinal use or primary care giver status to the satisfaction of the officer who makes the initial contact; A Command Officer shall be summoned to the scene prior to any enforcement action.

b.The person possesses less than one once of marijuana in particle form or no more than two grown plants; and

c.The person is not taken into custody for violation of laws unrelated to marijuana activities.

3.An individual may be cited and/or arrested and marijuana in his/her possession will be seized, submitted to the Police Services Agency's criminalistics' division and returned to the possessor only pursuant to court order if:

a.The person does not establish medicinal use or primary care giver status; or

b.The person possesses more than two grown plants or an ounce or more of marijuana in particle form; or

c.The person is taken into custody and marijuana is seized and turned into criminalistics' Division in accordance with standard police procedure.

4.Consistent with the low-priority policy, the agency does not pursue law enforcement activities with respect to the Cannabis Buyers' Cooperative's operations unless citizen complaints or other reports dictate such action.

5.Persons who do not establish personal medicinal use or primary caregiver status may be cited and arrested and marijuana in their possession will be seized.

Several questions were raised by members of the Committee, and members of the Medical Marijuana Work Group expressed concern about adopting the one ounce and two plant standards suggested by the District Attorney and the Attorney General, respectively, for triggering law enforcement action. Those standards did not evidence consideration of any recommendation from the medical community concerning reasonable amounts necessary for legitimate medical use. The Medical Marijuana Working Group also objected to uprooting/destroying marijuana plants in cases in which the possessor claimed to be a patient or a caregiver but was unable to provide satisfactory proof at the time of encountering an officer. In addition they objected to a process which would force a legitimate patient or caregiver to obtain a court order to secure the return of their medicine.

This Committee directed the Medical Marijuana working group to address the above concerns and return to the Committee with appropriate recommendations. Specifically, the Committee requested medical input concerning reasonable amounts necessary for legitimate medical use.

DISCUSSION

The Medical Marijuana Working Group met four times in preparation for this report. The Group reached easy consensus that a three-month supply was a reasonable amount for a patient to possess. The Group wrestled with the difficulty of defining what would be a reasonable amount of marijuana for a three-month supply. The difficulty in determining this amount comes from the interplay of a variety of factors. The nature of the patient's illness bears strongly on the amount of marijuana they need to relieve symptoms. Some illnesses will require daily medication. Others may only require occasional medication. The type of marijuana available to the patient is another factor. Some types are stronger than others are. Some can only be baked in other foods. That requires more marijuana than the type that can be smoked. Even within the same types of marijuana, there are qualitative differences in separate harvests.

Dr. Mikuriya offered the following Method for Calculating Actual Usable

THE MIKURIYA FORMULA.

Amount:

-Total number of plants (T)

-Number of Immature plants (I)

-Number of Unsuitable plants (u)

-Usable number x Height in centimeters (H) x Width (W) /divided by Density (D)

-water (w)

-lower leaves and stems (L)

-seeds (S)

=Net Usable amount

/divided by Number of stains (s)

=Actual Usable Amount (A) in grams

Reasonable Amount of Processed Marijuana

The Group agreed that a case by case determination of what was a three-month supply would be an undue burden to place on the police department. It would require familiarity with treatment schedules for different diseases. It would also require an ability to differentiate between types as well as comparative efficiency within types. Rather than impose such an unwieldy burden on the Police Department, the Group agreed to reach a specific amount that could act as an operational rule of thumb.

The Food and Drug Administration is currently testing the medical uses of marijuana. In their experiments the patients are given a monthly ration of three hundred cigarettes, each weighing approximately .9 gram. This is approximately one half pound per month. The Group agreed to adopt this federal standard as a reasonable amount for medical marijuana patients to possess. Therefore a reasonable amount of processed marijuana for a patient to possess would be a three-month supply, at half a pound per month, for a total of one and a half pounds. A reasonable amount of processed marijuana for a caregiver to possess would be the number of substantiated patients times one and a half pounds.

Reasonable Amount of Marijuana Plants

The Group also discussed the difficulty of determining a reasonable number of plants to be processed. Outdoor plants are harvested once a year while indoor plants can be harvested quarterly. Outdoor plants are typically larger and therefore generate a greater yield.

In determining the reasonable number of outdoor plants, the group considered the fact that they only produce once a year and that the reasonable harvest should be capable of yielding the annual supply of four three month supplies, six pounds. 30 adult plants should yield this harvest. An adult plant is one that has begun flowering. In order to assure that the patient is capable of producing 30 flowering plants they should be allowed to plant twice that number, 60 plants. They may maintain all 60 plants until they have 30 flowering plants. Once they have 30 flowering plants, they must destroy all the rest.

For indoor plants, it will take 48 plants to yield one and half pounds in a three-month period. As above, the patient should be allowed to plant twice the number, 96 plants, and maintain them until 48 are flowering. Once they have 48 flowering plants, they must destroy the rest of the flowering plants. However, they can continue, for the next cycle, to possess up to 96 non-flowering plants, for a cumulative total of 144 plants.

Patients are equally free to grow a combination of indoor and outdoor plants so long as they do not exceed the individual (indoor or outdoor) limits described above, nor does their cumulative number of plants (indoor and outdoor) exceed 144.

The reasonable number of plants for a caregiver to possess would be a multiple of the number of substantiated patients being cared for times the type of plant, indoor or outdoor.

Alternative Process

To avoid the possibility of destroying the plants of legitimate medical marijuana patients and caregivers, the Police Department agreed to an alternative process to uprooting/confiscating plants in cases in which a credible claim to patient or caregiver status is made but not satisfactorily proven and there is no other collateral evidence indicating an intent to sell (e.g. sales records, intercepted conversations, informants, witnesses, or scales and packaging materials beyond what is reasonable to the situation).

The police will not uproot/confiscate plants so long as the claimed patient/caregiver signs a statement declaring the number of plants, type of plants (i.e. marijuana) and ownership of the plants. The police may also take photographs of the plants and sample clippings from the bottom of the plants. The patient/caregiver must, within the next two business days, provide proof as to their status as patient or caregiver. If they fail to do so, within the time proscribed, the marijuana will be confiscated and treated as evidence under standard police procedures.

In cases where an individual possesses processed marijuana but cannot satisfactorily establish his/her patient or caregiver status, the police will confiscate the processed marijuana. The marijuana will be specially stored for two business days. If satisfactory proof of patient/caregiver status can be provided, within the proscribed time, the marijuana will be returned. If not, the marijuana will be treated as evidence and handled accordingly.

RECOMMENDATION

By consensus, the Medical Marijuana Working Group recommends adoption of the following policy:

The Police Services Agency' implements the low-priority policy as follows:

I.Marijuana-related activities are not targeted by the Police Services Agency. The Agency investigates and becomes involved in marijuana-related activities (1) as a result of citizen complains, (2) incident to law enforcement activities related to violation of laws unrelated to marijuana activities, or (3) due to public activity involving marijuana that provides probable cause for investigation.

II.Persons who come into contact with law enforcement will not be cited or arrested and marijuana in their possession will not be seized if all of the following conditions are met:

A.Status as Caregiver or Patient

The person establishes medicinal use or primary care giver status to the satisfaction of the officer who makes the initial contact;

B.Amount of Marijuana

1.Particle Form

a. The medical marijuana patient possesses

(I)less than one and one-half pounds of marijuana in particle form, or

b.The caregiver possesses no more than the amount specified above for each patient as to whom primary caregiver status is established to the officer's satisfaction.

2.Plants

a.The medical marijuana patient possesses

(i)Indoor Plants:

-no more than 48 plants if they are flowering

AND

-no more than 96 plants if the plants are indoors and less than 48 are flowering

(ii)Outdoor Plants:

-no more than 30 plants if they are flowering

OR

-no more than 60 plants if less than 30 are flowering

(iii)Combination of Indoor an Outdoor Plants

-no more than a total of 144 plants, provided that the maximum amounts for indoor and outdoor plants specified above (i.e. 30 flowering outdoor plants and 48 flowering indoor plants), may not be exceeded.

b.The primary caregiver possesses no more than the amounts specified above for each of the patients for whom proof of primary caregiver status is established to the officer's satisfaction.

C.The person completes a statement admitting ownership, possession and amount

D.The person is not taken into custody for violation of laws unrelated to marijuana activities.

III.An individual will not be cited and/or arrested and marijuana in his/her possession will not be seized if:

A.The individual does not establish primary caregiver status or medicinal use status to the officer's satisfaction, but based on the totality of the circumstances the officer determines that there is no evidence of criminal activity (e.g., intent to sell, informants, witnesses, sales records, etc.) and that the individual's claim of medicinal use or primary caregiver status is credible.

B.The person completes a statement admitting ownership, possession and amount

C.The person is not taken into custody for violation of laws unrelated to marijuana activities.

D.The person provides proof of medicinal use or caregiver status to the satisfaction of the Police Department within two business days after the police contact; and

E.The person possesses less than the amounts specified in the applicable provision of II, above.

IV.Consistent with the low-priority policy, the Police Department does not pursue law enforcement activities with respect to the Cannabis Buyers' Cooperative's operations unless citizen complaints or other reports or information dictate such action.

V.Persons who fail to establish medicinal use or primary caregiver status to the satisfaction of the officer and whose claim of such status is not determined by the officer to be credible, may be cited and arrested and Marijuana in their possession may be seized and turned into Criminalistics Division in accordance with standard police procedure.

VI.No law enforcement action will be taken without the consultation and approval of a Command Officer.

VII.The purpose of the foregoing policy guidelines is to assist the Police Services Agency in implementing the City's low-priority policy. These policy guidelines are not intended to and shall not be interpreted to override an officer's judgment and discretion based on a case-by-case evaluation of the totality of the circumstances or to interfere with the officer's sworn duty to enforce applicable law. It is understood by the City's policymakers that the low-priority policy does not guarantee that every individual who is a patient or caregiver within the meaning of Proposition 215, will not be arrested, cited or have his/her marijuana seized.

VIII.the Police Department will develop an appropriate training bulletin to implement the policies adopted by the Council.

Respectfully submitted,

Robert C. Bobb, City Manager
 


Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

------------------------------------------------------------------------

Case Name: USA V CANNABIS 9817044 9817137

Case Number: 98-16950 Date Filed: 09/13/99

------------------------------------------------------------------------

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 98-16950

Plaintiff-Appellee, 98-17044

98-17137

v.

D.C. No.

OAKLAND CANNABIS BUYERS'

CV-98-00088-CRB

COOPERATIVE; JEFFREY JONES,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Northern California

Charles R. Breyer, District Judge, Presiding
Argued and Submitted

April 13, 1999--San Francisco, California

Filed September 13, 1999

Before: Mary M. Schroeder, Stephen Reinhardt, and

Barry G. Silverman, Circuit Judges.

Per Curiam Opinion

___________________________________________________________

COUNSEL

Robert A. Raich, Oakland, California; Gerald F. Uelmen, Santa Clara University School of Law, Santa Clara, California; and Annette P. Carnegie, Morrison & Foerster, San Francisco, California, for the appellants-defendants.

Mark B. Stern, Assistant Attorney General, United States

Department of Justice, Washington, D.C., for the plaintiff-

appellee.

___________________________________________________________

OPINION

PER CURIAM:

This interlocutory appeal involves a preliminary injunction entered at the United States' request, to stop the distribution of cannabis in the wake of California's initiative supporting the medical use of marijuana. The district court held that the distribution of marijuana by certain cannabis clubs and their agents, including appellant, Oakland Cannabis Buyers' Cooperative and Jeffrey Jones (collectively "OCBC"), likely violates the Comprehensive Drug Abuse Prevention and Control Act of 1970 (the "Controlled Substances Act"), 21 U.S.C. S 841(a)(1). See United States v. Cannabis Cultivators Club, 5 F. Supp. 2d 1086, 1105 (N.D. Cal. 1998). The district court also indicated that it would consider in subsequent contempt proceedings a defense that a particular distribution was justi-

 11427

fied by a medical necessity. Id. at 1102. OCBC did not appeal the district court's order enjoining the distribution of marijuana by cannabis clubs. Instead, OCBC seeks to appeal three subsequent orders: (a) an order denying OCBC's motion to dismiss the complaint on the ground that an Oakland City ordinance makes it immune from liability under 21 U.S.C. S 885(d); (b) an order subsequently purged and vacated that found OCBC in contempt of the injunction; and (c) an order denying OCBC's motion to modify the injunction to permit cannabis distribution to persons having a doctor's certificate that marijuana is a medical necessity for them.

We lack jurisdiction over the appeal from the denial of the motion to dismiss and from the contempt order that has been purged. We have jurisdiction over the appeal from the denial of the motion to modify. We do not vacate the injunction, but remand for the district court to consider modifying the order.

Denial of the Motion to Dismiss

The district court denied the defendants' motion to dismiss that was grounded in the Oakland City Council's attempt to immunize OCBC under the Controlled Substances Act. The district court held that section 885(d) of the Controlled Sub- stances Act is intended to protect state law enforcement officials when they engage in undercover drug operations, and these defendants do not engage in such activities.

[1] We lack jurisdiction of the appeal because the denial of a motion to dismiss is generally not appealable. See 28 U.S.C. SS 1291 & 1292 (granting appellate jurisdiction over final orders and limited interlocutory orders). The denial of the motion to dismiss is not one of the interlocutory orders that can be appealed under S 1292, and it is not a final judgment under S 1291. See, e.g., Credit Suisse v. United States Dist. Ct., 130 F.3d 1342, 1345-46 (9th Cir. 1997).

OCBC contends we have jurisdiction under 28 U.S.C. S 1292(a)(1) authorizing, inter alia, appellate jurisdiction over

 11428

an interlocutory order "continuing . . . or refusing to dissolve or modify injunctions." OCBC asks us to treat the district court's denial of the motion to dismiss as, in effect, a continuance of the injunction and a refusal to dissolve it. OCBC relies upon Jung Hyun Sook v. Great Pacific Shipping Co., 632 F.2d 100, 102 n.4 (9th Cir. 1980).

[2] The motion to dismiss in Jung Hyun Sook, however, was not a motion to dismiss the action in its entirety, but a motion intended specifically to dissolve an injunction. There the district court had enjoined the further prosecution of a Jones Act suit pending the determination of a petition to limit liability. Id. at 102. The district court's denial of the motion to dismiss the limitation of liability petition was appealable because its denial continued in effect the injunction against further prosecution of the Jones Act suit. The purpose of the motion to dismiss in that case was not to decide the merits of the litigation, but only to dissolve the injunction. See 16 Wright & Miller, Federal Practice and Procedure , S 3924.2, at 198-99 n.6 (2d ed. 1996). The motion to dismiss in this case was intended to resolve the entire dispute on the merits. While one effect of granting OCBC's motion to dismiss in this case would have been to dissolve the preliminary injunction, the broader purpose was to resolve the case in defendants' favor. The general rule barring appeals from the denial of motions to dismiss, therefore, must apply. See Credit Suisse, 130 F.3d at 1345-46 ("The district court's denial of [defendants'] motion to dismiss is not a `final decision' within the meaning of 28 U.S.C. S 1291, and it is therefore not immediately reviewable.").

[3] Nor did the district court's denial of the motion to dismiss constitute an order "continuing" the injunction within the meaning of 28 U.S.C. S 1292(a)(1). An order that "continues" an injunction under that statute is an order that extends the duration of the injunction that would otherwise have dissolved by its own terms. See 16 Wright & Miller, supra, at 196; see also Public Serv. Co. of Colorado v. Batt, 67 F.3d 234, 236-

 11429

37 (9th Cir. 1995); In re Fugazy Express, Inc. , 982 F.2d 769, 777 (2d Cir. 1992).

[4] OCBC also argues that the denial of the motion to dismiss is appealable as a "collateral order" under the theory of the Supreme Court's decision in Mitchell v. Forsyth, 472 U.S. 511 (1985). Mitchell permits appeal from orders denying immunity from suit to government officials on damage claims for violations of federal rights. Such orders are immediately reviewable because the immunity at stake is not merely an immunity from liability but an "immunity from suit" that is effectively lost if a case goes to trial. See id. at 526. Section 885(d) is not such an immunity from suit, but is on its face simply an immunity from liability. It provides that "no civil or criminal liability will be imposed" upon law enforcement officers who engage in drug activity as part of their duties. 21 U.S.C. S 885(d). Thus, OCBC can obtain effective review of its liability (or immunity) under the Controlled Substances Act after the district court has rendered a final judgment.

[5] In addition, the order being appealed is not a "collateral order" involving an important issue separate from the merits of the lawsuit. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). The merits of the government's suit depend squarely upon whether or not OCBC is immune from liability under S 885(d).

The Contempt Order

OCBC appeals the district court's order finding it in contempt and modifying the preliminary injunction so as to empower the U.S. Marshal to seize OCBC's offices. The court neither fined nor jailed members of OCBC as a result of the contempt. The district court subsequently vacated this modification to the injunction on October 30, 1998 after OCBC told the court that it would comply with the injunction. Consequently, OCBC was permitted to re-enter its offices.

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[6] The government argues that this appeal is moot because the modification order was vacated and the contempt purged. "A long line of precedent holds that once a civil contempt order is purged, no live case or controversy remains for adjudication." Thomassen v. United States, 835 F.2d 727, 731 (9th Cir. 1987); accord In re Campbell, 628 F.2d 1260, 1261 (9th Cir. 1980). However, a party asserting that an issue is moot must demonstrate that there is no reasonable expectation that the violation will recur. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Campbell , 628 F.2d at 1261.

[7] This court has held that a purged contempt order is moot unless there is "near certainty" that the violation will recur. Campbell, 628 F.2d at 1262. That is not the case here. In its reply brief, OCBC reiterates that it has promised the district court that it will comply with the injunction. The only way for the violation to recur is if OCBC breaks its promise. Clearly, it is not a "near certainty" that OCBC will do so. Moreover, although the purged contempt order at issue in Campbell was not moot, the court explicitly limited its result to the facts of that case: "We emphasize that were it not for the statement of the grand jury foreman [informing the witness that he would be required to testify again in the future], we would be inclined to find that the purging of the contempt orders mooted the present appeals." Id. at 1261.

[8] OCBC also contends that the appeal of the contempt order is not moot because it is "capable of repetition, yet evading review." An issue may evade review because of an inherent limit in the duration of a challenged action that prevents full litigation before it ends. See Phoenix Newspapers, Inc. v. United States Dist. Ct., 156 F.3d 940, 945 (9th Cir. 1998). However, nothing inherently limited the duration of OCBC's contempt other than its own decision to purge. The appeal is now moot because OCBC voluntarily purged the contempt by declaring that it would comply with the injunction. Had OCBC chosen to remain in contempt to this day, the

 11431

appeal would not be moot because this court could have provided a remedy.

[9] OCBC argues that even if the denial of the motion to dismiss and the modification order are not in and of themselves appealable, the court should assert pendent appellate jurisdiction because they are "inextricably intertwined" with the denial of the motion to modify the injunction, which is appealable. See Swint v. Chambers County Comm'n , 514 U.S. 35, 51 (1995). We have held that the "inextricably intertwined" doctrine should be narrowly construed; more is required than that separate issues rest on common facts. See California v. Campbell, 138 F.3d 772, 778 (9th Cir.), cert. denied, 119 S. Ct. 64 (1998). The legal theories on which the motion to dismiss, the contempt order, and the motion to modify are independent of each other. Each required application of different legal principles. They are not therefore so "intertwined" as to necessitate simultaneous review.

Denial of the Motion to Modify

OCBC contends that the district court abused its discretion by refusing to modify its injunction to permit cannabis distribution to patients for whom it is a medical necessity. A few days after the district court issued its contempt citation instructing the Marshals to padlock its premises, OCBC asked the district judge to modify the injunction to allow continuing cannabis distribution to patients whose physicians certify that (1) the patient suffers from a serious medical condition; (2) if the patient does not have access to cannabis, the patient will suffer imminent harm; (3) cannabis is necessary for the treatment of the patient's medical condition or cannabis will alleviate the medical condition or symptoms associated with it; (4) there is no legal alternative to cannabis for the effective treatment of the patient's medical condition because the patient has tried other legal alternatives to cannabis and has found them ineffective in treating his or her condition or has found that such alternatives result in intolerable side effects.

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These factors were modeled on this court's recognition of a necessity defense to violations of federal law in United States v. Aguilar, 883 F.2d 662, 692 (9th Cir. 1989).

[10] The denial of a motion to modify an injunction is independently appealable under S 1292(a)(1) as one of the appealable interlocutory orders denominated in that section. Therefore, we have jurisdiction to review the order denying OCBC's motion for modification.

[11] The district court summarily denied OCBC's motion, saying that it lacked the power to make the requested modification because "its equitable powers do not permit it to ignore federal law." In doing so, the district court misapprehended the issue. The court was not being asked to ignore the law. It was being asked to take into account a legally cognizable defense that likely would pertain in the circumstances.

[12] The government did not need to get an injunction to enforce the federal marijuana laws. If it wanted to, it could have proceeded in the usual way, by arresting and prosecuting those it believed had committed a crime. Had the government proceeded in that fashion, the defendants would have been able to litigate their necessity defense under Aguilar in due course. However, since the government chose to deal with potential violations on an anticipatory basis instead of prosecuting them afterward, the government invited an inquiry into whether the injunction should also anticipate likely exceptions. This gives rise to a drafting issue -crafting an injunction that is broad enough to prohibit illegal conduct, but narrow enough to exclude conduct that likely would be legally privileged or justified.

[13] In Northern Cheyenne Tribe v. Hodel, we held that courts retain broad equitable discretion when it comes to injunctions against violations of federal statutes unless Congress has clearly and explicitly demonstrated that it has balanced the equities and mandated an injunction. 851 F.2d

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1152, 1156 (9th Cir. 1988). Here, although the government may be entitled to its requested injunction, there is no evidence that Congress intended to divest the district court of its broad equitable discretion to formulate appropriate relief when and if injunctions are sought. Further, there is no indication that the "underlying substantive policy" of the Act mandates a limitation on the district court's equitable powers. Id. at 1156.

[14] The district court erred in another respect as well. In deciding whether to issue an injunction in which the public interest would be affected, or whether to modify such an injunction once issued, a district court must expressly consider the public interest on the record. The failure to do so constitutes an abuse of discretion. Northern Cheyenne Tribe, 851 F.2d at 1156; American Motorcycle Association v. Watt, 714 F.2d 962, 965 (9th Cir. 1983); Carribean Marine Serv. Co. v. Baldridge, 844 F.2d 668, 678 (9th Cir. 1988). OCBC has identified a strong public interest in the availability of a doctor-prescribed treatment that would help ameliorate the condition and relieve the pain and suffering of a large group of persons with serious or fatal illnesses. Indeed, the City of Oakland has declared a public health emergency in response to the district court's refusal to grant the modification under appeal here. Materials submitted in support of OCBC's motion to modify the injunction show that the proposed amendment to the injunction clearly related to a matter affecting the public interest. Because the district court believed that it had no discretion to issue an injunction that was more limited in scope than the Controlled Substances Act itself, it summarily denied the requested modification without weighing or considering the public interest.

[15] We have no doubt that the district court could have modified its injunction, had it determined to do so in the exercise of its equitable discretion. The evidence in the record is sufficient to justify the requested modification. OCBC submitted the declarations of many seriously ill individuals and

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their doctors who, despite their very real fears of criminal prosecution, came forward and attested to the need for cannabis in order to treat the debilitating and life threatening conditions.

In short, OCBC presented evidence that there is a class of people with serious medical conditions for whom the use of cannabis is necessary in order to treat or alleviate those conditions or their symptoms; who will suffer serious harm if they are denied cannabis; and for whom there is no legal alternative to cannabis for the effective treatment of their medical conditions because they have tried other alternatives and have found that they are ineffective, or that they result in intolerable side effects.

[16] The government, by contrast, has yet to identify any interest it may have in blocking the distribution of cannabis to those with medical needs, relying exclusively on its general interest in enforcing its statutes. It has offered no evidence to rebut OCBC's evidence that cannabis is the only effective treatment for a large group of seriously ill individuals, and it confirmed at oral argument that it sees no need to offer any. It simply rests on the erroneous argument that the district judge was compelled as a matter of law to issue an injunction that is coextensive with the facial scope of the statute.

[17] The district court, accepting the government's argument that it lacked the authority to grant the requested modification, failed to undertake the required analysis and summarily denied OCBC's request. Accordingly, we reverse the order denying the modification and remand. On remand, the district court is instructed to reconsider the appellants' request for a modification that would exempt from the injunction distribution to seriously ill individuals who need cannabis for medical purposes. In particular, the district court is instructed to consider, in light of our decision in United States v. Aguilar, 883 F.2d 662, 692 (9th Cir. 1989), the criteria for

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a medical necessity exemption, and, should it modify the injunction, to set forth those criteria in the modification order.

The panel will retain jurisdiction over any further appeals in this case.

The case is REMANDED for further proceedings consistent with this opinion.

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CASE HISTORIES:

HUMAN RIGHTS VIOLATIONS OF SERIOUSLY ILL PATIENTS




Steve & Michele Kubby (Placer County, now living in Orange County)

Steve Kubby was the 1998 Libertarian Party candidate for governor of California. He and his wife Michele were arrested on January 19, 1999, in a police raid of their home in Olympic Valley.

Steve was diagnosed with malignant pheochromocytoma, a rare form of adrenal cancer, in 1975 and began taking medical marijuana soon after. While recent tests by the University of Southern California have shown that Steve's cancer is very much still active in his body, his doctors credit marijuana with keeping him alive. Michele takes medical marijuana to relieve the sometimes crippling symptoms of irritable bowel syndrome.

Steve and Michele were jailed for 3 days and released on their own recognizance on January 21, 1999. They were arraigned and charged with a combined total of 19 felony drug charges. Steve and Michele have pleaded innocent on all charges. There is no evidence of sales.

On July 20 -- the original start date for the trial -- Judge Larry D. Gaddis denied a motion of continuance. Kubby attorneys argued that the late delivery on July 9, 1999, of CD-ROMs containing data files from the Kubbys' computers was not enough time to review the files and prepare an adequate defense. The Kubbys were seeking to delay the trial until September. The defense team also wanted to investigate the actual Kubby computer hard drives to determine if authorities had tampered with them. On July 30, retired Judge Robert G. Vonasek was assigned to preside over the Kubby trial after the defense and prosecution each disqualified prior choices as prejudiced.

Status: On August 10, 1999, in the middle of jury selection, the defense entered a motion for continuance, which Judge Vonasek allowed. The motion was made because doctors had ordered bed rest for Michele Kubby, who is 20 weeks pregnant. The trial is now scheduled to begin Feb. 15, 2000.

The Kubbys now reside in Orange County where they hope to start a new life under more compassionate government. The Orange County Register has written four editorials in support of the Kubby case and blasting the Placer County authorities for their illegal and immoral raid.

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Dr. Michael Baldwin and Georgia Baldwin (Placer County)

Their story: The Baldwins were arrested September 23, 1998, at their Granite Bay home. Michael, a Rocklin dentist, and his wife Georgia each possessed physician recommendations (as required by Prop. 215) for using marijuana to treat migraine headaches and other ailments. They grew their own marijuana. The Baldwins were each charged with cultivation and possession with intent to sell.

The Baldwins' jury trial began April 13, 1999. Judge James Garbolino called for a one-week recess after the prosecution rested its case on April 21, allowing him time to research the complex legal issues surrounding medical marijuana.

On April 28, in what could turn out to be a landmark ruling, Garbolino ruled that since the Baldwins had obtained physician recommendations for the marijuana, the Baldwins' 146-plant garden complied with Prop. 215, and he dismissed the marijuana cultivation charges. Following the ruling, the defense began presenting its case against the remaining charges of selling marijuana. On May 12, a mistrial was declared when the jury was unable to decide on the remaining charges of selling marijuana. The jury deadlocked 6-6 for Michael and 7-5 to acquit Georgia. Garbolino is the same judge presiding over the Steve and Michele Kubby trial.

Status: Prosecutors announced on July 8 that the Baldwins will be retried on the marijuana possession-for-sale charges despite the hung jury decision.

The retrial is scheduled to begin March 9, 2000.

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Robert DeArkland (Sacramento County)

His Story: DeArkland, 70, was arrested in a raid of his home on October 1, 1998. A multijurisdictional team of narcotics officers confiscated 13 marijuana plants even though DeArkland had a recommendation from Sausalito psychiatrist Dr. Eugene Schoenfeld to use medical marijuana in the treatment of prostate cancer and arthritis. In addition to the plants, authorities confiscated grow lights, fertilizer, $424 in cash, 1.5 grams of dried pot, and a letter from Schoenfeld.

During the raid, DeArkland had trouble breathing and was taken to a hospital where he was put under observation and later released. DeArkland was charged with cultivating marijuana and possession for sale, felonies that could net sentences ranging from 16 months to three years and eight months in jail. He was released on $10,000 bail.

After court hearings, Sacramento County Deputy District Attorney Steve Grippi dismissed the charges for insufficient evidence. In June, 1999, deputies returned DeArkland's property and plants, but the plants were dead..

DeArkland filed a $25 million claim against Placer County contending wrongful raid and arrest. He filed a similar $10 million claim against Sacramento County. Both claims were rejected. Status: DeArkland filed a claim with his insurance firm, CGU of Boston, for the destruction of his medical marijuana plants. In one of the nation's first known instances in which an insurer has paid for losses of medical marijuana, CGU paid DeArkland $6,500 after the adjustor decided the plants were covered under the shrubbery clause of DeArkland's policy, which provides a maximum payment of $500 per plant.

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Robert Ames (Sacramento County)

His story: Even though Ames had obtained a physician's recommendation for using marijuana to treat gastritis, police arrested Ames after finding 32 marijuana plants growing in Ames's Sacramento home.

Ames is being represented by Joseph Farina, who ran as the Libertarian Party candidate for Attorney General of California in 1998. According to a recent letter from Ames, police have admitted that Ames was in compliance with Proposition 215 and yet proceeded to break into Ames' home without a proper warrant.

Sacramento Police have already admitted on the stand that it is the policy of the Sacramento Police Department to automatically ARREST all patients, KILL all cannabis, and DESTROY all gardens, all in response to California's Compassionate Use Act of 1996.

"Just like all of the other medical cannabis cases being relentlessly pursued by overzealous police and prosecutors all over the state since the passage of 215, the prosecution in my case has absolutely no evidence of sales except for the number of plants, 32 grown under a single light bulb, which the prosecution is trying to say is obviously more than for personal medical use," reports Ames. Status: Ames' trial is scheduled to begin November 4, 1999

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Pete Brady (Butte County)

His story: Pete Brady, freelance journalist for progressive publications such as Hemp Times, High Times, and Cannabis Culture, was arrested January 21, 1999 -- two days after the Kubbys were arrested. Brady's arrest was precipitated when narcotics agents doing a nighttime surveillance of the Kubby home saw Brady inside. Brady was visiting the Kubbys for a magazine article he planned to write about them.

Brady's lengthy article on the Kubby bust appeared in Cannabis Culture magazine, on newsstands from late April to late May.

Status: At a preliminary hearing held in mid-April, 1999, prosecutors were unable to present any evidence that Brady was guilty of any crimes at all. The judge indicated he would dismiss all charges, but raised the issue that the District Attorney might refile the charges, which would have necessitated Brady being re-arrested. A felony cacti charge was dismissed, but a misdemeanor medical marijuana charge remains active.

At a May 10th hearing, prosecutors were again unable to present any evidence that Brady had committed any crimes at all. Judge Barbara Roberts appeared to be growing impatient with the prosecution's inability to understand that Brady's medical recommendation, which she has examined, makes the marijuana charge against him a no-starter.

On May 25, the prosecution dropped all charges against Brady.

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Marvin Chavez (Orange County)

His story: Chavez, director of the Orange County Cannabis Cooperative, suffers from a severe spinal deformity. Since being denied access to medical marijuana, he has experienced headaches, muscle spasms, and chronic pain in his neck, spine, and head.

Status: On January 29, 1999, Chavez was sentenced to six years in prison for providing small amounts of medical marijuana to undercover agents posing as patients and mailing marijuana to a cancer patient. He was not allowed to present a Proposition 215 defense. The judge, who denounced Chavez during sentencing, was later found by his crashed automobile with three times the legal limit of alcohol. The judge was back on the bench the next day; Marvin is still in jail.

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David Herrick (Orange County)

His story: Herrick was found guilty by an Orange County jury on May 13, 1998, for the "crime" of giving marijuana to two patients in exchange for donations at the Orange County Cannabis Co-op. Herrick was convicted of two counts of marijuana sales and subsequently was sentenced to four years in prison.

Herrick's appeal began June 21, 1999, with oral arguments at Orange County Court of Appeals. At issue in the appeal is the disallowance of both a Proposition 215 defense and a necessity defense, as well as prosecutorial misconduct. Herrick's attorney, Stephen Gilbert, argues that the court was wrong to reject the first two prongs of a necessity defense -- namely, that the evil presented by Herrick's dispensing of marijuana was not "significant," and that there was no necessity that the defendant, as opposed to someone else, provide it.

Gilbert argues that the intent of the voters in passing Proposition 215 was to grant patients safe access to marijuana, and that the defense of necessity applies to otherwise unlawful acts committed for the benefit of others, as in Herrick's case.

Status: On September 7, 1999, California's Fourth District Court of Appeals reversed Herrick's conviction because of willful misconduct by the prosecutor in the case. The Court's decision did not address the medical marijuana issue.

The state attorney general has not decided whether to appeal the decision or seek a second trial. The state has 40 days to make that decision.

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Jack Shachter (Orange County)

His story: Shachter is a co-founder with Marvin Chavez of Orange County's Cannabis Co-Op, which furnished marijuana to patients possessing a doctor's recommendation to use the drug, in exchange for $20 "donations" to the Co-Op.

In April, 1998, Shachter gave marijuana to two undercover officers posing as caregivers and accepted the donations. He was arrested and charged with selling marijuana and possession with intent to sell. Shachter was found guilty and sentenced to four years in prison.

Status: Shachter's lawyer says that Shachter, who suffers from lung cancer, has less than four years to live. An agreement is in the works between Shacter and the Orange County District Attorney's office that may result in Shachter's early release from prison to live out his final days.

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Andrea Nagy (Los Angeles County)

Her story: Andrea is the former operator of the Ventura County Medical Cannabis Center. Nagy and her mother immigrated to the United States from Hungary in 1981. Both Nagy and her mother are medical marijuana patients. Nagy's home was raided April 19, 1999, by over 20 LA County Sheriff's Deputies in full riot gear. The Deputies carried a battering ram with which they would have broken Nagy's door down had she not let them in. Once inside, Deputies ignored a letter from Nagy's and her mother's doctor recommending marijuana for medical use. Deputies also ignored a Temporary Restraining Order from a Ventura County Court which permitted Nagy to grow marijuana under Prop. 215. Deputies seized 60 plants (30 each for Nagy and her mother) plus over $20,000 in grow lights and equipment. Neither Nagy nor her mother was arrested. Deputies told Nagy if any charges are filed she would be notified by mail.

Nagy has filed a lawsuit to get her lights returned and to collect damages for the seizure of her medicine. The trial began June 10th in West Hollywood.

Status: On July 16, a Court of Appeals decision affirmed a lower court decision handed down in March that Nagy could not legally sell marijuana to patients through her marijuana distribution center.

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Christopher Brown (Mendocino County)

His story: In 1997, local drug agents raided Brown's home in Willits and confiscated marijuana he was taking medicinally under a doctor's recommendation for treatment of chronic pain suffered as a result of a motorcycle accident.

Status: In a rare instance of law enforcement returning seized marijuana (see the entry for Dean Jones), the Mendocino County Sheriff's Department returned Brown's medical marijuana to him in April, 1999 following a California Supreme Court decision ordering the return of the marijuana.

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Gene Weeks (San Bernardino County)

His Story: Gene Weeks takes medical marijuana to relieve pain from diabetes, arthritis, and a disc disorder that is causing his spine to degenerate. On June 29, 1998, members of the San Bernardino County Sheriff's Department's Narcotics Division arrested Weeks at his trailer in Adelanto. Law enforcement officers also seized Weeks's plants and more than $700 in cash. Weeks was released from jail several days later. To this date charges have not been filed against him.

Weeks had permission to use medical marijuana from an Ojai doctor at the time of the raid. He has since received another recommendation to use medical marijuana from another doctor in Laguna Niguel. On Sept. 18, Weeks underwent quadruple bypass heart surgery which he claims are linked to the stress caused by the arrest and the seizure of his plants..

Status: On April 9, 1999, Weeks filed a claim with San Bernardino County seeking damages in excess of $10,000 caused by the raid on his home. The claim also says Weeks's civil rights were violated, including the right to due process and freedom from unreasonable searches and seizures. The claim contends that the raid and arrest inflicted severe emotional distress on Weeks.

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Timothy Weltz (San Bernardino County)

His Story: Weltz was arrested at his home by the San Bernardino Sheriff's Department on June 23, 1998. Weltz uses medical marijuana to relieve symptoms of lymphoma. Status: Weltz filed a claim against San Bernardino County on April 8, 1999, seeking damages resulting from the arrest. Weltz is represented by the same attorney who represents Gene Weeks.

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Dean Jones (Ventura County)

His Story: Jones is a diabetic who suffers from high blood pressure, migraine headaches, back problems, and periodic foot inflammation. On May 26, 1998, Jones visited the Simi Valley Police Department to notify authorities he was growing marijuana for his own use. On May 27, officers arrived at his home and arrested Jones even though Jones had a doctor's recommendation to take marijuana. Police seized Jones's marijuana plants and Jones was booked into Ventura County Jail, where he remained for about 14 hours until being released in the early morning on his own recognizance. Jones was 62 at the time.

Status: On Friday, June 19, 1998, in what may be the first case of someone legally retrieving a drug stash seized by law enforcement in the United States, Judge Edward F. Brodie ordered police to return all of Jones's property, including the marijuana. However, of the 13 plants listed in the police report as being taken into evidence, only 10 were returned, all of them unusable. Also at the hearing, prosecutors announced they would not file charges against Jones for felony marijuana cultivation. After the hearing, Jones's attorney, Stanley Arky, filed a claim against the Simi Valley Police Department and three officers, claiming false arrest.

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Steve Scott (Butte County)

His story: Steve Scott is a 25-year-old HIV positive man who helped gather signatures to qualify Prop. 215 for the ballot in 1996. He received HIV via a blood transfusion after a car accident when he was twelve years old.

Even though Scott carries with him a doctor's medical recommendation for marijuana, he has twice been arrested in Chico by city police officers. The total amount of marijuana seized for both arrests amounted to less than eight grams..

Status: Scott appeared in court numerous times until judges dismissed both charges "in the interest of justice." He demanded that his medicine be returned, but Butte County prosecutor Teresa Kludt refused, saying that former California Attorney General Dan Lungren told her not to return Scott's medicine.

Thanks to recent California Supreme Court rulings, Scott hopes to retrieve his seized medicine from law enforcement.

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B.E. Smith (Trinity County)

His story: Smith is charged with cultivation of marijuana in violation of federal law. A Vietnam veteran, Smith suffers from Post Traumatic Stress Disorder and takes marijuana under a doctor's recommendation to treat anxiety.

In June, 1997, Smith planted a small medical marijuana garden on land he leased in Trinity County. Smith notified state and local authorities before planting his garden. Authorities declined to prosecute him because of his compliance with Proposition 215.

The case was turned over to law enforcement officers of the U.S. Forest Service and is being prosecuted under federal law which, the federal government maintains, supersedes state law.

Status: Smith's trial began May 18th in U.S. District Court, Sacramento. Presiding judge is Garland Burrell. Smith was the first California patient to challenge federal drug laws since Proposition 215 passed in November, 1996. On May 21, Smith was found guilty of felony marijuana possession and cultivation. The federal government did not permit him to use any evidence of his medical condition as a defense. On August 6, 1999, Smith was sentenced to 27 months in prison, a longer sentence than prosecutors had requested.

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John Patrick (Sonoma County)

His story: Patrick, who suffers from rheumatoid arthritis and persistent insomnia, was arrested on May 20, 1998 for growing his own medical marijuana. After the arrest, Patrick obtained two doctor's recommendations for the medical garden.

Status: On April 29, 1999, Sonoma County Superior Court handed down a Court Order allowing Patrick to "utilize the permitted amount of marijuana for medicinal purposes" under Proposition 215. In a follow-up court hearing held on June 25, the judge handed down a court order stating, "The defendant can possess no more than one ounce of marijuana at any given time."

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Jane Weirick (San Francisco County)

Her story: Director of the San Francisco Patients Resource Center, Weirick had received state, county, and city support for establishing a new cannabis buyers' club to fill the need created by the April 1998 closure of the San Francisco Cannabis Cultivators Club. That Club served about 9,000 patients. Weirick also started Compassion on Wheels (COW) to deliver to the most at-risk patients.

In addition, Weirick is a medical marijuana patient herself, using cannabis to alleviate chronic pain from a back injury she suffered in 1991. She has recently been charged by the federal government with possession with intent to sell, and faces a possible six month jail term.

Status: Weirick's case has been continued until Fall, 1999.

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Jeff W. Jones (Alameda County)

His story: As Executive Director of the Oakland Cannabis Buyers' Cooperative, Jones and the OCBC were preliminarily enjoined May 19, 1998, by U.S. District Judge Charles S. Breyer from engaging in the distribution of marijuana and from conspiring to violate the U.S. Controlled Substances Act.. The OCBC continued to operate in the good faith belief that no violation existed because federal law excludes from the definition of "distribution" the joint purchase and sharing of controlled substances by patients.

The City of Oakland has consistently supported by resolution the operations and mission of the OCBC: to provide seriously ill patients with a safe and reliable source for medical cannabis. Last July, the City Council adopted one of the most liberal medical marijuana policies in the state, and later passed an ordinance that attempted to protect the OCBC by making its workers agents of the City. The intent was to extend to the OCBC workers the same immunity from prosecution under the U.S. Controlled Substances Act afforded to law enforcement personnel.

However, at subsequent Federal hearings, neither the immunity defense nor a defense of medical necessity was successful. On Oct. 20, 1998, following Judge Breyer's adverse ruling, the OCBC saw its dispensary closed by Federal agents as the Coop's request to remain open pending appeal to the 9th Circuit Court of Appeals was denied.

Oakland's City Council promptly condemned the Federal action and declared that a public health emergency exists for many of the city's patients due to the OCBC's closure. The OCBC currently maintains a Service Center to educate the public about the medical use of cannabis, and also operates "Legal Cannabis, The Hemp Store," in downtown Oakland.

Status: The OCBC's appeal to the 9th Circuit Court of Appeals was heard September 13, 1999, and the three member panel concluded that seriously ill patients should be exempt under federal law.

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Robert Galambos (Calaveras County)

His story: Galambos was arrested in a raid July, 1997, and was charged with felony cultivation and possession with intent to sell. Officers found over 300 marijuana plants in his garden. Galambos has a doctor's recommendation to use marijuana for chronic pain he suffers as a result of a car crash that fractured his skull a decade ago, but he claims that most of his plantation was intended for use at Bay Area cannabis clubs that sell to patients who can't grow marijuana themselves.

Status: On April 29, 1998, Judge John Martin, in a series of pretrial rulings, limited a Proposition 215 defense and disallowed the "necessity" defense, the common-law concept that a crime should be excused if it was done to avoid a greater evil. Judge Martin also agreed to a continuance to allow Galambos's attorney to challenge these rulings in a writ to the Court of Appeal in Sacramento.

The trial finally began March 17, 1999. On March 25, the jury returned a single verdict and convicted Galambos of marijuana cultivation. The jury deadlocked on the possession with intent charge.Sheriff made an announcement to the press at the end of the trial that "Calaveras County has zero tolerance for Medical Marijuana". Galambos was sentenced to nine months in prison. He is currently appealing the sentence and is out of jail until the appeal is decided. The County

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Renee Boje (Los Angeles County)

Her story: Boje, age 29, was one of nine people, including Todd McCormick, arrested on July 29, 1997. While not a patient herself, Boje was assisting McCormick with medical marijuana research he was conducting for a book.

Boje was charged with conspiracy to cultivate, possession of and intent to distribute marijuana. Each count is punishable by a mandatory minimum sentence of 10 years to life in prison without parole. Three months after her arrest, Boje was told the charges against her were dropped. She decided to spend some time in Canada to get away from the ordeal she had been through.

While in Canada, Boje was arrested at a medical marijuana garden. A Royal Canadian Mounted Police background check revealed that the charges against Boje had been reinstated, without her knowledge, and she was listed on a fugitive warrant. Steps towards extradition to the United States were immediately initiated.

Status: This case will be heard this November at the Supreme Court. Boje is seeking protection from the Canadian Refugee Board.

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Ken Hayes (Sonoma County)

His story: Hayes is executive director of a San Francisco medical marijuana club called Cannabis Helping Alleviate Medicinal Problems, or CHAMP. On May 14, 1999, officers arrested Hayes in his home near Petaluma and seized about 800 marijuana plants and 10 pounds of processed marijuana. Hayes said he began growing marijuana in Sonoma County about a year ago because for many AIDS patients and other ill people, it's essential medicine. The marijuana Hayes was growing was given to patients in exchange for donations.

Status: Hayes is free on bail while facing criminal charges of commercial cultivation of marijuana.

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Gary and Anna Barrett (San Bernardino County)

Their story: Anna suffered crash-related injuries in a 67-foot fall to the pavement. Her damaged stomach could not handle both food and the narcotics given to her for pain control. Gary suffers from Chron's Disease, dysthymic disorder, and poly-substance abuse. Noted medical marijuana researcher Dr. Tod Mikuriya recommended marijuana for Gary and Anna's symptoms.

On June 14, 1999, officers of the San Bernardino Sheriff's Narcotics Unit, Marijuana Suppression Team, entered the Barrett home and seized the marijuana they were growing along with the grow lights.

Status: On August 23, 1999, the Barretts were arraigned on felony charges of marijuana cultivation and possession for sale. The next two preliminary hearings will be held on August 30 and September 2 before Judge Brian Saunders in Victorville Superior Court. Their seized property has yet to be returned to them.

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Chris J. Miller (Placer County)

His story: Miller obtained a physician's recommendation in September, 1997, to use marijuana to ease chronic pain, arthritis, and muscle spasms as a result of a series of motorcycle and automobile accidents. After several cannabis clubs that he was a member of closed down, Miller began growing his own marijuana as allowed under Proposition 215.

In March, 1999, the Placer County sheriff's Marijuana Eradication Team served Miller a search warrant and found five plants and 12 seedlings in an outdoor shed at Miller's Citrus Heights home. Miller's medical recommendation, as well as his sister's, were on display at the shed. Miller was arrested and his plants and growing equipment were seized.

On July 23, 1999, the Placer County District Attorney dropped all charges, announcing that Miller would not be charged due to "the small number of plants, his serious medical condition documented through years of medical records, and the absence of any indication that he was selling." According to Deputy D.A. Dave Tellman, Miller established an affirmative Proposition 215 defense and the charges were dropped because "we couldn't convince a jury beyond a reasonable doubt."

Status: Misdemeanor charges are still pending against Miller's wife Penny, who did not possess the required physician's recommendation. However, Miller pointed out that his wife did have a caretaker recommendation, allowing her to have marijuana in her home. Miller added that his wife did not use marijuana. Miller is "strongly considering" suing Placer County for wrongful arrest.

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Jim Hall (Shasta County)

His Story: On March 16, 1999, Jim's home was raided by the Shasta County Sheriff's Marijuana Eradication Team. Jim grew a personal medical garden for himself and his mother, who suffers from glaucoma. During the raid, officers took Jim's property and medicine yet never arrested him or charged him with any crime. Weeks before the raid, Sheriff's Department officers had visited Jim's home at Jim's invitation to confirm that he was growing a medical garden.

When Jim filed a request for the return of his property, Shasta County District Attorney McGregor Scott filed criminal charges against Jim and his mother: marijuana cultivation, sales, and conspiracy.

Status: Prosecution ongoing.

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Petra Payne (Riverside County)

Her Story: Payne, 39, a resident of the town of Hemet, grew marijuana to ease chronic back pain. On July 16, 1998, Payne received a recommendation from an Orange County doctor to use marijuana. Payne has been charged with cultivation of marijuana and possession of the drug for sale.

Status: Payne is free on bail. Her trial is scheduled to begin the week of August 23, 1999, in Hemet Superior Court. If convicted, Payne faces more than eight years in prison.

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Paul Hall (Sacramento County)

His Story: Hall was arrested April 9, 1998 in Sacramento by a Task Force from neighboring Placer County. He was taken into custody and held 30 days in jail before bail could be arranged. He has a valid recommendation to take medical marijuana from a Sacramento doctor.

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Peter McWilliams (Los Angeles County)

His story: McWilliams, a successful publisher and best-selling author ("Do It!", "Ain't Nobody's Business If You Do"), was arrested July 23, 1998 after a year-long federal investigation. He was charged in federal court with conspiracy to grow marijuana plants and entered a not-guilty plea.

Just 19 days prior to his arrest, McWilliams gave a stirring speech at the Libertarian National Convention in Washington, D.C. that was nationally televised, and officially joined the Libertarian Party at the conclusion of the speech.

McWilliams has AIDS and non-Hodgkins lymphoma. He took marijuana to suppress the nausea caused by the anti-AIDS "cocktail" drugs he takes. Since his arrest and the confiscation of his medicine, McWilliams has lost 30 pounds and the amount of the HIV virus in his bloodstream has skyrocketed from undetectable to a level that will inevitably lead to the crumbling of his immune system.

Status: Status: On March 11, 1999, U.S. District Court Judge George King denied McWilliams' request for permission to use medical marijuana. McWilliams' attorney, Thomas J. Ballanco, plans to appeal to the 9th U.S. Circuit Court on the grounds that denying McWilliams access to marijuana constitutes an abridgement of his fundamental right to life. His trial is scheduled to begin November 16, 1999.

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Todd McCormick (Los Angeles County)

His story: Todd McCormick had bone cancer nine times before the age of 10. While the cancer is currently in remission, the top five of McCormick's neck vertebrae are fused, causing him chronic pain. Medical marijuana relieves the pain caused by his condition.

McCormick was arrested on July 29, 1997, after Los Angeles Sheriff's deputies and agents from the Drug Enforcement Administration (50 law enforcement officers total) raided McCormick's Bel Air home.

Status: Out of jail on $500,000 bail. Trial scheduled to begin November 16, 1999.

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Penny and C.D. McKee (Tulare County)

Their story: Use medical marijuana for severe medical problems.

Status: Convicted of felony cultivation for growing 43 plants.

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Kim and Rick Levin (Shasta County)

Their story: Rick was disabled following a fall at work that broke his back and left him with spinal cord damage. He uses marijuana almost exclusively to relieve the pain and spasms he suffers as a result of his disability. A local doctor gave his recommendation for Rick to take medical marijuana.

Rick was arrested in May, 1998. His wife Kim was arrested a week later after Rick claimed his patient's right to possess and cultivate under Prop. 215. The Levins grew a personal marijuana garden for Rick's medicinal use.

The office of Shasta County District Attorney McGregor Scott has stated that because Prop. 215 did not pass in Shasta County, county law enforcement are not required to honor the law. D.A. Scott has directed law enforcement to arrest all patients possessing over 1/8 ounce or cultivating.

Kim and Rick have spent over $25,000 in legal fees so far. Kim has started a group, the Shasta Patient's Alliance, to serve as a central information point for medical marijuana patients in the county. She has also appeared before the County Board of Supervisors requesting them to direct the D.A. to address the rights of patients under the law. D.A. Scott refuses to change his policy.

Status: On August 13, 1999, in a surprising turn of events, all charges were dropped against Kim Levin due to lack of evidence. Rick's prosecution continues for the same charges: cultivation of marijuana, possession of marijuana for sale, and armed commissio of a felony. After months of requests, Shasta County Sheriff Jim Pope has agreed to meet with Rick and Kim to discuss patient's rights in Shasta County. Rick's trial is scheduled to begin August 30, 1999, at the Shasta County Courthouse in Redding.

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Dion Markgraaf and Steve McWilliams (San Diego County)

Their story: Markgraaf, a 29-year-old Ocean Beach resident, takes marijuana to relieve symptoms of his diabetes. McWilliams, 44, takes marijuana for the chronic pain he suffers as the result of a motorcycle accident. Both men had the doctor's recommendations required under Prop. 215.

Markgraaf was arrested last year after selling marijuana to an undercover detective at the cannabis club he ran. McWilliams was charged after authorities found 11 marijuana plants in his van on January 12, 1988, at a Border Patrol checkpoint.

Markgraaf and McWilliams each pled guilty to a felony charge in March, 1999.. On April 20, 1999, Markgraaf was placed on three years of probation and ordered to perform 200 hours of community service on his guilty plea of maintaining a place where marijuana was distributed. McWilliams was also placed on probation and ordered to perform community service.

Status: On July 6, McWilliams was arrested again at the headquarters of Shelter from the Storm Cannabis Collective, the group he founded. McWilliams attempted to explain to officers from the San Diego Police Department that each marijuana plant at his facility belonged to an individual medical marijuana user and that Judge Kenneth So -- the judge who sentenced McWilliams in April -- had ruled that McWilliams had the right to use marijuana and grow it for his consumption.

Despite this evidence, police destroyed all the marijuana plants, seized the growing equipment, and arrested McWilliams.

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Steve Fisher (Siskiyou County)

His Story: Fisher, a medical marijuana patient, is also founder of the WayBack Recovery Center. On August 4 agents of the Marijuana Eradication Team raided Fisher's home and charged him with cultivation of marijuana, possession of marijuana for sale, and theft by false pretense. During a preliminary hearing, one of the officers who participated in the raid acknowledged that Fisher produced a copy of a physician's recommendation as required under Proposition 215. Officers also found copies of the recommendation posted on each of the 18 plants they found. In addition, officers admitted that they had not read Fisher his Miranda rights.

Status: Fisher remains out of jail on bail. Judge Charles Henry ruled that enough evidence existed to go forward with a trial on all charges.