[KUBBY HOME PAGE] [AMERICAN MEDICAL MARIJUANA ASSOCIATION] [PROP. 215]
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COMPLAINT AND REDRESS OF GRIEVANCE

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Submitted Tuesday, January 11, 2000 as a Civil Rights
Complaint to California Attorney General Bill Lockyer

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TABLE OF CONTENTS

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I. PARTIES

II. BACKGROUND

III. COMPLAINT

IV. PRAYER FOR RELIEF AND REDRESS

V. ATTACHMENTS:

-1- POLITICAL PERSPECTIVE
-2- JOURNALISTIC PERSPECTIVE
-3- MEDICAL STATEMENT
-4- DR. DeQUATTRO LETTER
-5- CANNABINOID INHIBITION
-6- CANNABINOIDS SUPPRESS PHEOS
-7- 'PEACE OFFICERS GUIDE'
-8- OAKLAND GUIDELINES
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I. PARTIES AND VENUE 

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Mr. Steve Kubby and Mrs. Michele Kubby, hereinafter known as Kubby and/or Kubbys (used interchangeably) are citizens of the United States and residents of the State of California. The Kubbys may be contacted at: Monarch Bay Plaza, Box 375, Dana Point, Ca 92629.

Mr. Daniel E. Lungren, hereinafter known as Lungren is a citizen of the United States and a resident of the State of California. Lungren was Attorney General of the State of California. As an elected official, Lungren took an oath, on file with the Secretary of State and had a fiduciary duty to uphold the Constitution of the United States, the State of California and the laws of the State of California. Lungren was enriched, empowered and compensated for his duties.

Mr. Bradley Gates, hereinafter known as Gates is a citizen of the United States and a resident of the State of California. Gates was Sheriff of Orange County. As an elected official, Gates took an oath, on file with the Secretary of State and had a fiduciary duty to uphold the Constitution of the United States, the State of California and the laws of the State of California. Gates was enriched, empowered and compensated for his duties.

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II. BACKGROUND

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WHEREAS: Steve Kubby is a legally disabled American who is qualified under the definitions of the Americans with Disabilities Act. Kubby has been certified by the United States Social Security Administration as medically disabled since 1980. Kubby was last re-certified as medically disabled in 1999. Kubby's disability is such that he can suffer a heart attack, stroke, or death anytime he is not protected by medical marijuana. Kubby can provide extensive medical research, performed by scientists and physicians at the University of Southern California which confirms that medical marijuana, which is the only medicine he uses, is successfully treating his disease, malignant pheochromocytoma.

WHEREAS: Kubby's medical disability is real and life-threatening. Although so rare that most physicians never encounter a case of pheochromocytoma - even casually - they all know about it because its spectacular effects are legendary in medical school. "Pheos" produce norepinephrine; and the result is explosive elevations in blood pressure which produce blinding headaches, lethal strokes and heart attacks. Benign varieties are most common and can be successfully removed if the diagnosis is made beforehand and the patient protected by medication during delicate surgery. Malignant pheos, like Kubby's are something else; because they have already spread, complete surgical removal is impossible; nor do they respond to chemotherapy or radiation. They don't grow very aggressively, but they continue to release deadly showers of norepinephrine and almost all patients succumb to a horrible, emaciated death within a few years. Only Kubby has survived and continues to survive, thanks to the unique properties of medical marijuana.

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III. COMPLAINT

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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 or sanction for possession or cultivation.

WHEREAS: Despite the clear intent of the Compassionate Use Act of 1996 to protect patients, most California Sheriffs and District Attorneys have adopted a "Zero-Tolerance" policy of arresting patients, destroying all medicine and then forcing patients into expensive court cases in order to "let the courts sort it out."

WHEREAS: Section 11362.5 specifically states the purpose of the Compassionate Use Act is "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." [emphasis added.]

WHEREAS: Attorney General Lungren, acting in his official capacity, issued a statement to all California voters, in the 1996 California Ballot Guide, Official Title and Summary for Proposition 215, that Prop. 215:

"EXEMPTS: patients and defined caregivers who possess or cultivate marijuana for medical treatment recommended by a physician FROM CRIMINAL LAWS which otherwise prohibit POSSESSION OR CULTIVATION OF MARIJUANA." [emphasis added] WHEREAS: throughout California, lawfully documented patients and their care givers, who read and believed the Official Title and Summary for Prop. 215 have been arrested, in record numbers, as a result of being misled by Lungren's official statements.

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: 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: The Ninth Circuit Court of Appeals has ruled that patients who are seriously ill, may be legally 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: Lungren and Gates, through malfeasance of office and conspiracy, and through the power of their offices, initiated official policies, which had the effect of directing and/or instructing their employees to violate the constitutional rights of the Kubbys and others, their civil rights, under Title 42, United States Code, their rights under the Americans with Disabilities Act, the Unruh Civil Rights Act and the Compassionate Use Act of 1996 (Section 11362.5 of the Health and Safety Code).

WHEREAS: The Americans with Disabilities Act of 1990, SEC. 202. DISCRIMINATION. 42 USC 12132 states, in pertinent part:

"Subject to the provisions of this title, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." WHEREAS: The Unruh Civil Rights Act states, in pertinent part: "No person may be denied the benefits of, or be unlawfully subjected to, discrimination under any program or activity either funded directly or assisted financially by the state. (Cal. Gov. Code § 11135.) Individuals with disabilities shall have the same right as the general public to the full and free use of streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics and physician's offices, public facilities and other public places. As of January 1, 1997, a violation of the ADA will also be a violation of the Unruh Act." WHEREAS: Disabled persons are protected under the anti-hate crime statutes, which provide for sentence enhancements for persons willfully threatening persons in the exercise of state or federal constitutional or statutory rights or damaging their property, or the property of a public or private institution because of their disability or perceived disability or association with persons with disabilities. (See Cal. Pen. Code, §§ 422.6, 422.7 and 422.75.)

WHEREAS: Lungren and Gates conspired to block the implementation of the Compassionate Use Act by refusing to significantly modify their prior official policies and ordering other law enforcement agencies to do the same, in compliance with the provisions of Section 11362.5.

WHEREAS: Lungren and Gates conspired after the passage of Compassionate Use Act to block the implementation of 11362.5 by forcing sick, disabled and dying patients to defend themselves under an affirmative defense, rather than allowing 11362.5 to serve as a bar to prosecution, or by challenging 11362.5 directly in state appellate court.

WHEREAS: Lungren and Gates conspired to place Tom Gorman, a civil servant on temporary leave from the California Bureau of Narcotics Enforcement, to run their "No on 215 Campaign," in direct violation of California election law and the Hatch Act which is supposed to prevent involvement of government officials in elections.

WHEREAS: Lungren and Gates failed to report political campaign contributions to their "No on 215 Campaign" with the California Attorney General's office contributions such as travel, telephone, and meetings with federal officials like Barry R. McCaffrey, in direct violation of election law and the Hatch Act.

WHEREAS: Lungren, immediately after the passage of the "Compassionate Use Act," Section 11362.5, issued false and misleading guidelines, intended to thwart the will of the voters, such as Information Bulletin No. 97-BNE-01 through the California Department of Justice, Division of Law Enforcement, which was issued to all chiefs of police, sheriffs and district attorneys (see appendix 7).

WHEREAS: Lungren and Gates, deliberately and willfully obstructed the implementation of the Compassionate Use Act, so as to disable 11362.5 and punish those who attempted exercise their rights, rather than challenging the 11362.5 directly in appellate court.

WHEREAS: Bulletin 97-BNE-01 takes away the power of our electorate, acting under proper legislative authority by plebiscite and guts the Compassionate Use Act by allowing discretionary disregard by individual prosecutors, sheriffs and police chiefs and their interpretations of each individual case while ignoring the State Health and Safety Code and the State Constitution.

WHEREAS: There exists extensive misinformation and unlawful instructions in Information Bulletin 97-BNE-01 (see appendix 7), such as the following:

--"Patients must be seriously ill. Minor injuries, colds, common flu, most skin cancer, stress, etc., are not covered." [FALSE - Physicians are allowed to recommend medical marijuana for ANY condition which they feel marijuana could be helpful.]

--"The patient must have had an examination by a physician." [FALSE - There is no such requirement in the Compassionate Use Act.]

--"The patient must not be engaged in behavior that endangers others such as driving a vehicle, working with dangerous equipment, or being under the influence in public." [FALSE - There is no such requirement in the Compassionate Use Act, only the statement that, "Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others."]

--"One marijuana plant produces approximately one pound of bulk marijuana. One pound will make approximately 1,000 cigarettes, "Therefore, one can argue that more than two plants would be cultivation or more than necessary for personal medical use." [FALSE - There are NO limits to how many plants a patient may grow for personal medical use. Federal IND medical marijuana patients receive 3,650 cigarettes per year, which requires approximately 144 plants indoors or 60 plants outdoors to produce, according to Dr. Tod Mikuriya, former head of all unclassified marijuana research for the U.S. government.]

--". . . numerous studies confirm that smoking marijuana is a danger to youth. Therefore, it will be difficult in most cases for a doctor acting in good faith to recommend that a youth smoke marijuana. Officers should continue to handle youth by utilizing Section 601 or 602 of the Welfare and Institutions Code. Failure to act on the part of the officer could place both the officer and his/her department in jeopardy of liability." [FALSE - There are no such peer-reviewed studies to support this assertion nor is there an age limitation in Section 11362.5]

--"The primary caregiver must have prior and consistent responsibility for the patient's housing, health, or safety. Since the act uses the words 'primary' and 'consistent,' it assumes that the patient is unable to be responsible for or has not been responsible for his/her own housing, health, or safety and that no other person, institution, or government agency is the primary provider for these needs." [FALSE - Section 11362.5 uses the word "OR" not "AND" when describing caregiver as someone who has "consistent responsibility for the patient's housing, health, OR safety.]

--"If, considering the guidelines and questions set out in section II, the officer still thinks, based on the amount, packaging, circumstances, and the answers to the questions, that he/she has probable cause to believe that the individual has cultivated, possessed, or used marijuana for other than medical purposes, the officer may arrest and book the suspect (or, if appropriate, cite and confiscate)." [FALSE. Section 11362.5 specifically says that the purpose of the Compassionate Use Act is, "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." Here Lungren is telling police to arrest sick people if they don't appear to be sick or using their medication properly, regardless of the law.]

WHEREAS: On December 2, 1999, Orange County Sheriff Mike Carona, Assistant Sheriff George Jaramillo, and Captain. Randy Blair, head of the Narcotics and Vice Division met with Anna Boyce R.N., Steve Kubby, and Jeff Jones, executive director of the Oakland Cannabis Buyers' Cooperative.

WHEREAS: Captain Blair handed the group a copy of the Sheriff's Bulletin 97-15, "Marijuana for Medical Use," issued by former Sheriff Brad Gates, which is even more restrictive than Bulletin No. 97-BNE-01, issued by Lungren. Where Lungren's Guidelines allowed for up to two pounds, Orange County's limit is a strict 28.5 grams or 57 cigarettes. Any patient or caregiver possessing more than that these tiny amounts will be arrested according to Captain Blair. In contrast, all federal medical marijuana patients and Kubby consume double that amount in just one week.

WHEREAS: Sheriff Carona was also quite clear that anyone incarcerated in his jail, even with a life and death necessity for medical marijuana, will NOT receive any necessary medical marijuana to treat his or her illness during such incarceration period.

WHEREAS: The current Orange County policy, created by Gates and Lungren gives patients no more protection than recreational users, nullifying Section 11362.5 and endangering sick, disabled and dying citizens.

WHEREAS: Gates' anti-215 policies are still in effect in the Orange County Sheriff's Department and therefore poses a potentially lethal threat to Kubby and other patients who reside in Orange County and represents a continuing violation of their civil rights.

WHEREAS: Gates went to Washington, DC and at a United States Senate hearing begged for the Federal government to overrule 215 on constitutional grounds. While this may not be malfeasance of office, it certainly shows how determined Gates was to nullify the new law, in excess of his jurisdiction and lawful authority.

WHEREAS: It is the duty of the Attorney General to enforce the Compassionate Use Act uniformly and protect patients when their rights are violated as provided by Article V, Section 13, of the Constitution of California, which states:

"Subject to the powers and duties of the Governor, the Attorney General shall be the chief law officer of the State. It shall be the duty of the Attorney General to see that the laws of the State are uniformly and adequately enforced. The Attorney General shall have direct supervision over every district attorney and sheriff and over such other law enforcement officers as may be designated by law, in all matters pertaining to the duties of their respective offices, and may require any of said officers to make reports concerning the investigation, detection, prosecution, and punishment of crime in their respective jurisdictions as to the Attorney General may seem advisable. Whenever in the opinion of the Attorney General any law of the State is not being adequately enforced in any county, it shall be the duty of the Attorney General to prosecute any violations of law of which the superior court shall have jurisdiction, and in such cases the Attorney General shall have all the powers of a district attorney." [emphasis added] WHEREFOR: Lungren and Gates, based upon prima facie evidence and the written policies promulgated under their hand, while in office, are guilty of conspiracy to deprive Kubby and other seriously ill Californians of the 3-year-old established rights as created by the voters of California under the Compassionate Use Act.

WHEREFOR: Lungren and Gates, through the power of their offices, conspired to block the implementation of the Compassionate Use Act by arresting and prosecuting patients, rather than enforcing Section 11362.5, as is their oath.

WHEREFOR: Lungren and Gates, through the power of their offices, instituted, implemented and promulgated official policies, under their hand, to deny the Kubbys and others their constitutional rights, civil rights and medical rights.

WHEREFOR: Gates and Lungren, through the power of their offices, acted without lawful authority and under color of law.
 
 

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IV. PRAYER FOR RELIEF AND REDRESS 

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As set for in the above complaint, the Kubbys pray for relief and redress as follows:

--Adopt as a statement of official state law enforcement policy, the official 1996 Ballot Guide Analysis of Proposition 215 by the Legislative Analyst:

"This measure amends state law to allow persons to grow or possess marijuana for medical use when recommended by a physician. The measure provides for the use of marijuana when a physician has determined that the person's health would benefit from its use in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or 'any other illness for which marijuana provides relief.' The physician's recommendation may be oral or written. No prescriptions or other record-keeping is required by the measure."

"The measure also allows caregivers to grow and possess marijuana for a person for whom the marijuana is recommended. The measure states that no physician shall be punished for having recommended marijuana for medical purposes."

[Source: http://www.ss.ca.gov/Vote96/html/BP/215analysis.htm]

--Adopt as a statement of official state law enforcement policy, the Official Title and Summary for Proposition 215, issued by former Attorney General Lungren, acting in his official capacity, which stated to all California voters, in the 1996 California Ballot Guide, that the initiative, once passed:

"EXEMPTS: patients and defined caregivers who possess or cultivate marijuana for medical treatment recommended by a physician FROM CRIMINAL LAWS which otherwise prohibit POSSESSION OR CULTIVATION OF MARIJUANA." [emphasis added]

-- Seek an injunction, statewide, against arresting any patient or caregiver who is in substantial compliance with the Oakland Guidelines (see appendix 8).

--Allow patients to form cooperative "Medical Marijuana Dispensaries" that are empowered to pay their members to grow medical marijuana and allow these coops to sell their medicine to other patients. Patients or caregivers caught selling to anyone other than these coops would forfeit their protection from prosecution and would therefore be highly motivated to keep all medical marijuana within this closed white market for patients.

--Instruct the State Health Department to begin issuing photo IDs which provide protection from arrest, without violating patients' right to privacy, as is the case with the current I.D. ordinance being considered in San Francisco.

-- Order all district attorneys and sheriffs to enforce the law, 11362.5, as written so as to provide a safe and effective bar to prosecution or sanctions as provided by law.

-- Instruct all district attorneys, sheriffs that the Compassionate Use Act of 1996, because it was passed directly by the People, represents a direct mandate to ensure that qualified patients and caregivers have the protection, safety and peace of mind essential to their health, well being and survival.

-- Take appropriate action so that every bona fide medical marijuana patient who has been victimized by the State of California's violation of this law shall have the right to redress and compensation, including standing to file suit for pain, suffering, and the disruption or destruction of their beings, home, family, reputation and/or livelihood resulting from the violation of this law.

-- Take appropriate action that the State of California be held accountable and financially responsible for any and all medical, educational or psychiatric treatment as deemed necessary by the parents and/or the child's primary physician due to trauma suffered by the child/children who have been present at the time of indiscriminate police 'raids' and subjected to the violence and intrusion these raids encompass, - or have suffered the loss of parental nurturing and companionship as a result of their parent's illegal arrest and/or jailing. To further insure other family members, house mates or caretakers equal protection regardless of age, if deemed necessary.

-- Investigate and file complaint, if needed, with the Grand Jury for criminal charges against Lungren and Gates.

--Provide standing to sue Lungren and Gates.

-- Reimburse the Kubbys for all costs incurred. These costs may include, but should not be limited to attorney fees, out of pocket expenditures for clerical, travel, telephone and witnesses as required by legal defense; as well as loss of income and additional medical expenses created by the stress imposed on the family or due to the medical negligence of the criminal justice system.

-- Remove Kubby case from jurisdiction of the Placer county DA and move the trial court for dismissal.

-- File a motion for 'statement of factual innocence' on behalf of the Kubbys.

-- Replace Kubby's computer and software.

-- Return of seized personal property, passports, medicine (marijuana), office and growing equipment and supplies; and the replacement of items damaged or 'lost' while in the possession of law enforcement persons or agencies.
 
 

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V. ATTACHMENT -1- POLITICAL PERSPECTIVE: 

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Lungren lived in Placer county while he was Attorney General and knows Placer County Sheriff Ed Bonner and District Attorney Bradford R. Fenocchio quite well. Kubby has reason to believe that Lungren communicated his displeasure over Kubby's campaign for governor and his vocal criticism of Lungren's policies to Bonner and Fenocchio, who then conspired to use an "anonymous letter" to have Kubby arrested and discredited. That letter later proved to be entirely false and there is no evidence in the discovery Kubby has received that any effort was made by the Placer Sheriffs Department to determine who wrote the letter or why.

The anonymous letter used to raid Kubby was considered, "weak and nonspecific." by the El Dorado Sheriff's deputy who received the mysterious letter and then mailed it on to Placer Sheriff's department. Nevertheless, Placer County Sheriff's Deputy Ed York rushed to open a case against Kubby within 24 hours of receiving the letter, starting his police report by stating that Kubby openly advocated medical marijuana use and enclosing hundreds of statements Kubby made while campaigning for governor of California.

Kubby believes Lungren knew that Kubby was a key leader in the Prop. 215 campaign and was determined to get revenge. Brian Lungren, brother and campaign advisor to the former Attorney General, lived down the street from Kubby in Squaw Valley where they sometimes would meet and talk on the trail or at the post office. Once Prop. 215 passed, Brian Lungren refused to speak to Kubby and was visibly angry. In addition, Kubby was told by Dennis Peron and others that when Lungren raided the SF Cannabis Club, he asked everyone there: "What do you know about Steve Kubby?"

As additional evidence that Kubby was a raided because of his role in the 215 campaign, one of the documents seized by the Task Force when it raided the Kubbys was a letter from 215 co-author, Dennis Peron, confirming Kubby's key role in passing the new law:

"Now that victory is ours, I wanted to take this moment to thank you. Not many know the pivotal roll you played. Indeed, without your help we would not be basking in our glory. .When history is written there will be a footnote that there was once a man named Steve Kubby who survived cancer, who used his personal pain to create a more compassionate society."

[source: http://www.kubby.com/family/DennisPeronLetter.html]

A few days after the investigation against the Kubbys opened, Kubby received a tip that he was a political target of narcotics agents who wanted revenge against him. Kubby was advised to watch for a green Jeep with blackened windows. Several days later, the Kubbys spotted the infamous green Jeep watching them from a point just up the street. Outraged that they had been placed under surveillance, the Kubbys began documenting every aspect of their garden, showing how they were carefully complying with the law. Kubby even sent messages in the trash for the police to read when they were examining his garbage. These messages, entitled "ATTENTION LAW ENFORCEMENT," gave exact details about Kubby's terminal illness and how he could die if deprived of medical marijuana. Kubby also stated in the letter that at no time did he intend to possess more than a six month supply of 3.5 pounds.

After his arrest, Peter King, a sydicated columnist who had interviewed Kubby during the gubernatorial campaign wrote a story called, "MEDICAL-MARIJUANA FIGHT IS ABOUT POWER, NOT MEDICINE," which appeared in dozens of newspapers statewide. In that story, Mr. King recounts how Kubby had warned him that he was under surveillance:

"Now, with the interview winding down, the otherwise free-wheeling politician asked to go off the record. Kubby confided that he was concerned about drug-police payback. He had received a tip: A stakeout of his Lake Tahoe residence was under way."

"Specifically, he had been warned to watch out for a green Jeep Cherokee with tinted windows."

Once the Kubbys found out they were under surveillance, they made a conscious decision to fight for their rights, the rights of all medical marijuana patients and to fight to protect the law they worked so hard to pass.

Kubby believes the agents loyal to Lungren, Bonner and Fenocchio, at the California Department of Justice, may have deliberately tampered with data on his computers. Kubby made that charge publicly last summer and challenged District Attorney Fenocchio to allow an independent examination of his computer hard drives to determine if tampering had taken place. District Attorney Fenocchio refused.

All this was reported on July 14 1999, in the Auburn Journal:

"Woods and Joseph Farina, who represents Michele Kubby, said repeated requests for computer disks and computer hard drives went unanswered by the Sacramento High Crimes Task Force through directives issued from the DA's office."

"According to Farina, the records were first requested at the March 2 preliminary hearing in Tahoe City. A request by Michele Kubby on April 19 so that she could file bankruptcy also went unanswered."

"Farina said he received the first of two disks during the first week of June, and the second last Tuesday. "

"'I have a right to get this information that was requested five months ago in a timely manner,' Farina said. 'I should also have the computer because the software on the disks is specific to the computer. I don't know if the information can be accessed with just the disks.'"

"In a telephone interview Tuesday, Steven Kubby - the Libertarian candidate for governor and medical marijuana advocate - said he believed the District Attorney's Office did not release the disks earlier because they purposefully withheld evidence."

"'We have very good reason to believe the prosecutors have doctored, tampered with and falsified evidence, and that is why they refuse to turn over the hard drive,' Kubby said."

Tyrell Software Corporation examined the Kubby CD-ROMs released to us last July by the Sacramento High Crimes Taskforce and said: "Our findings show that the CD-ROMs we examined were not created properly to copy Macintosh files onto the CD-ROMs. The copies were made for a DOS platform instead of Macintosh. This mistake has made the filenames unreadable, has corrupted the data, and in the worst case data is simply missing which did not get copied to the CD-ROM. It also appears as if entire sections of the hard drive were not backed up onto the CD-ROMs; indicated by a lack of the Macintosh System Folder where important files are kept."

"It is our expert opinion that these CD-ROMs could not even be called copies of the Kubby's original hard drives. No further inspection could be performed due to the state of these CD-ROMs."

As of January 1, 2000, we still have not received any usable data from our computers. It is Kubby's opinion that these events show a deliberate pattern of obstruction of justice by these officials and agents.
 
 
 
 

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ATTACHMENT -2- JOURNALISTIC PERSPECTIVE:

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Another person who has suffered as a result of the Kubby's illegal arrest is journalist Pete Brady, who interviewed Kubby and photographed one of his plants, while they were being watched through the window by Placer County Investigator Michael Lyke. Investigator Lyke claimed that a check of DEA crime records identified Brady, as a Jamaican, DEA-certified drug smuggler, according to the evidence submitted to obtain the search warrant used against Kubby. Pete Brady, who had never been to Jamaica and has never been charged with smuggling, wrote the DEA under the Freedom of Information Act. The DEA told Brady there were no records on him at all.

Here is journalist Pete Brady's account, as published in the May 1999 edition of Cannabis Culture, a popular, international magazine:

"When I heard the Kubbys had been arrested, I was concerned for them, and immediately began seeking details necessary to update the article I'd already filed on them for this magazine."

"I never expected Kubby's arrest to impact me. I've written about eco-tresspassers who break laws by preventing loggers from cutting 1000-year-old redwood trees, and lots of other controversial people. I'm a journalist, I figured, why worry that somebody's legal problems would become my own?"

"In retrospect, I should have been more paranoid. I've endured three years on federal and state probation arising from a previous medical marijuana conviction, which means police can walk into my home anytime to do a "probation search.''

"Because I break no laws, am a good neighbor and positive member of the community, I feared no evil. But on January 21, two days after the Kubbys were raided and the last day of my federal probation, a gang of armed men stormed my house claiming they were there to do a 'routine probation search.' As I later determined, the search had little to do with my probation. I had never even met my probation officer and had never been probation searched before."

"The men identified themselves as members of the Butte County Sheriff's marijuana eradication unit; they ransacked my home and interrogated me for several hours. An authentic probation search looks for controlled substances and guns and then is over, but these cops kept asking me about people I associated with, my bank accounts, my magazine writing. They hacked my computer."

"When they found a small quantity of medical marijuana in my freezer; I informed them I was protected by my doctor's recommendation under 215. Officers reacted with derision, saying they didn't believe in medical marijuana and alleging that my severe and documented medical conditions - arising from being injured when I was a high school teacher several years ago - weren't severe enough for them."

"Later, they brought me out on my patio and asked about the more than 40 different house plants there. Pointing to tiny ornamental cacti, they said they were charging me with felony possession of peyote, possession of marijuana, probation violation. Unless I could provide information on a "big bad political person that you have been hanging out with in the last few weeks," I would be going to prison for a "long, long time."

"A journalist must protect the integrity of his sources. Even though I don't want to go to prison, informing isn't something I would consider. I was taken to jail. After spending all the money in my bank account posting bail, I returned home to find items and cash missing from my house, my computer broken, my neighbors distraught."

"NTTF's Investigator Lyke called me one morning, introducing himself as the man who'd ordered me arrested. I told him that what he saw me doing at the Kubby's was a bona fide journalistic activity. He said he'd like to read the article when it came out. "

"At some point in our surreal conversation, I asked Lyke if he enjoyed using his career to inflict pain on cancer patients. I asked him if he felt proud, when he went home at night, knowing he'd ordered to be arrested a non-violent, introspective, partially-disabled writer."

"Lyke didn't respond to my challenges in an overtly authoritarian manner. In fact, we spent 30 minutes engaging in an actual dialogue about hemp, drug war ethics, and medical marijuana."

"For example, Lyke was curious about hemp seed oil found in Kubby's refrigerator. I told him hemp seed oil was a totally legal product that was also the most healthful and nutritionally complete seed oil available. Kubby makes a delicious concoction using garlic, hemp oil, tofu, lemon juice and spices. His daughter Brooke loved it, I told Lyke, and love is not yet a crime."

"The Kubbys appear confident, but I'm not sure how I feel. Kubby has publicly described me as a "totally innocent bystander" who would not have been arrested if I hadn't visited his house when he was under surveillance. Yet as I write this, I have not been able to afford a competent private lawyer who can keep me from going to prison."

"They'll love you in prison," a jailer told me. "You'll get raped, get AIDS and die. That's what you get for being a druggie."

"I would be more optimistic if as a journalist I hadn't written about so many people sent to prison for legally possessing medical marijuana. Strange paradoxes occur where I live: a woman who kills her newborn child gets a year in jail while marijuana growers routinely get sentenced to two or more years. I now understand what Michele Kubby meant when she said that being arrested is like 'being robbed and raped.' When the drug warriors confiscated my medicine, they stole my faith in America."

"Now, the prosecutor wants to send me to prison, to steal the sunshine from my eyes, to rob me of the feel of my partner's arm on a spring day. She wants to cage me, give me such a dire criminal record that I can never get employment, cause as much anguish as possible. Why?."

"I examine my conscience and my actions honestly and objectively trying to see the evil man that the prosecutor must believe that I am in order for her to be so zealous in her prosecution. I am not perfect - nobody is - but I cannot see myself as an evil man. Like the Jamaican smuggler in the DEA's faulty file, he does not exist. The prosecutor instead is trying to send another harmless, innocent person to prison. I am scared, heartbroken and angry, but I have no choice but to soldier on."

Pete Brady, having spent all his money to make bail, was forced to act as his own attorney in defending himself from serious charges. Fortunately, once Mr. Brady explained his story to the judge and showed her several major articles he had written about Kubby's arrest, all charges were dropped.
 
 

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ATTACHMENT -3- MEDICAL STATEMENT OF PHYSICIAN

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Dr. Vincent DeQuattro, a world authority on Kubby's disease, has submitted a letter to Superior Court declaring that marijuana not only "controlled the symptoms of the pheochromocytoma, but in my view, has arrested its growth."

Dr. DeQuattro's letter to the Superior Court is quite specific about how he believes medical marijuana is protecting Kubby from the deadly effects of his disease:

"Further, your Honor, please consider the consequences of Steve's condition not being controlled. His tumor is manufacturing large quantities of norepinephrine (noradrenaline), and possibly epinephrine (adrenaline). Either compound in minute quantities could kill him instantly by causing sudden cardiac death due to arrhythmia, sudden cardiac death due to acute myocardial infarction, or sudden death due to cerebral hemorrhage or cerebral vascular occlusion."

"Faith healers would term Steve's existence these past 10 -15 years as nothing short of a miracle. In my view, this miracle, in part, is related to the therapy with marijuana. Marijuana contains many substances with can neutralize the effects of epinephrine and norepinephrine on the heart and vascular tissue."

That letter is enclosed as well as two scientific studies which show that the cannabinoids in medical marijuana have been shown to arrest the growth of Kubby's type of cancer and inhibit the production of norepinephrine, the deadly form of adrenaline that is the usual cause of death for patients with his disease.
 
 
 
 

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ATTACHMENT -4- DR. DeQUATTRO LETTER TO SUPERI0R COURT

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Dr. Vincent DeQuattro
M.D., F.A.C.C., F.A. C.P
Professor of Medicine
USC Medical Center
Director Hypertension
Chief Hypertension
Diagnostic Laboratory
Division of Cardiology

February 4, 1999
 
 

Judge of Superior Court

Department 14

P.O. Box 5669

Tahoe City, CA 96146

RE: STEVE KUBBY - MARIJUANA THERAPY FOR MEDICAL MANAGEMENT OF MALIGNANT PHEOCHROMOCYTOMA

Dear Judge:

I am writing this letter in behalf of my patient, Steve Kubby, who was diagnosed with malignant pheochromocytoma over 15 years ago. At that time, I was taking care of him with maximum medical therapy including the drugs dibenzline and alphamethyltyrosine. His tumor had spread to his liver at that time. I referred him to Ann Arbor, where Dr. James Sisson treated him with radiotherapeutic doses of the radionuclide MIBG. Then, as now, that was experimental therapy. I lost Steve to follow up over the past 10-12 years.

I first noted his survival when I received my voter pamphlet in November 1998. I contacted him to determine how it was that he had survived all these years. He told me that he was treating himself with the advice of his physicians in Northern California with marijuana, and has been taking no other medical therapy for several years. I also contacted Dr. Sisson at Ann Arbor - he told me that every patient other than Steve, with Steve's condition, had died during this interval of time. Steve was the only survivor. I am convinced by Steve's blood pressure response during his recent incarceration when he was without marijuana therapy, that he still harbors a malignant pheochromocytoma. In some amazing fashion, this medication has not only controlled the symptoms of the pheochromocytoma, but in my view, has arrested growth.

I strongly endorse that you consider supplying Steve with sufficient supplies of his specific marijuana product in order to control his life threatening disease. Further, over the next few weeks, I propose to evaluate in a scientific and conventional medically approved manner, Steve's condition; to evaluate his response to marijuana therapy, and to evaluate his future need for treatment.

I have spent most of my adult life in the study and treatment of pheochromocytoma. Fortunately, it occurs only about once in 1 million people. Presently in Los Angeles, we have 7-10 patients who have pheochromocytoma. Of the five under my care presently, three have malignant pheochromocytoma. Each one is at the end of their line after having had maximum conventional therapy. If in fact marijuana therapy has improved and extended Steve's life, it may also be a terrific boon to our present patient's and their families.

Further, your Honor, please consider the consequences of Steve's condition not being controlled. His tumor is manufacturing large quantities of norepinephrine (noradrenaline), and possibly epinephrine (adrenaline). Either compound in minute quantities could kill him instantly by causing sudden cardiac death due to arrhythmia, sudden cardiac death due to acute myocardial infarction, or sudden death due to cerebral hemorrhage or cerebral vascular occlusion.

Faith healers would term Steve's existence these past 10 -15 years as nothing short of a miracle. In my view, this miracle, in part, is related to the therapy with marijuana. Marijuana contains many substances with can neutralize the effects of epinephrine and norepinephrine on the heart and vascular tissue. Several are potent antioxidants like vitamins C and vitamin E. I have offered Steve extensive evaluation at our Medical Center to determine in a scientific manner the extent of his ailment and the mechanisms by which his therapy has held his disease at bay for all these many years. This is not only for Steve's benefit, but to seek the potential for benefit to many patients around the world.

Thank you for your kind consideration, and I look forward to hearing from you.

Best personal wishes in your deliberation.

Sincerely yours,

s/Vincent DeQuattro, M.D., F.A.C.C., F.A.C.P.

Professor of Medicine

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ATTACHMENT -5- CANNABINOID INHIBITION OF NORADRENALINE RELEASE

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Br J Pharmacol 1999 Jan;126(2):457-66

Effect of the cannabinoid receptor agonist WIN55212-2 on sympathetic

cardiovascular regulation.

Niederhoffer N, Szabo B

Pharmakologisches Institut der Albert-Ludwigs-Universitat, Freiburg i. Br., Germany.

1. The aim of the present study was to analyse the cardiovascular actions of the synthetic CB1/CB2 cannabinoid receptor agonist WIN55212-2, and specifically to determine its sites of action on sympathetic cardiovascular regulation.

2. Pithed rabbits in which the sympathetic outflow was continuously stimulated electrically or which received a pressor infusion of noradrenaline were used to study peripheral prejunctional and direct vascular effects, respectively. For studying effects on brain stem cardiovascular regulatory centres, drugs were administered into the cisterna cerebellomedullaris in conscious rabbits. Overall cardiovascular effects of the cannabinoid were studied in conscious rabbits with intravenous drug administration.

3. In pithed rabbits in which the sympathetic outflow was continuously electrically stimulated, intravenous injection of WIN55212-2 (5, 50 and 500 microg kg(-1)) markedly reduced blood pressure, the spillover of noradrenaline into plasma and the plasma noradrenaline concentration, and these effects were antagonized by the CB1 cannabinoid receptor-selective antagonist SR141716A. The hypotensive and the sympathoinhibitory effect of WIN55212-2 was shared by CP55940, another mixed CB1/CB2 cannabinoid receptor agonist, but not by WIN55212-3, the enantiomer of WIN55212-2, which lacks affinity for cannabinoid binding sites. WIN55212-2 had no effect on vascular tone established by infusion of noradrenaline in pithed rabbits.

4. Intracisternal application of WIN55212-2 (0.1, 1 and 10 microg kg(-1)) in conscious rabbits increased blood pressure and the plasma noradrenaline concentration and elicited bradycardia; this latter effect was antagonized by atropine.

5. In conscious animals, intravenous injection of WIN55212-2 (5 and 50 microg kg(-1)) caused bradycardia, slight hypotension, no change in the plasma noradrenaline concentration, and an increase in renal sympathetic nerve firing. The highest dose of WIN55212-2 (500 microg kg(-1)) elicited hypotension and tachycardia, and sympathetic nerve activity and the plasma noradrenaline concentration declined.

6. The results obtained in pithed rabbits indicate that activation of CB1 cannabinoid receptors leads to marked peripheral prejunctional inhibition of noradrenaline release from postganglionic sympathetic axons. Intracisternal application of WIN55212-2 uncovered two effects on brain stem cardiovascular centres: sympathoexcitation and activation of cardiac vagal fibres. The highest dose of systemically administered WIN55212-2 produced central sympathoinhibition; the primary site of this action is not known.
 
 
 
 

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ATTACHMENT -6- CANNABINOIDS FOUND TO SUPPRESS PHEOS

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The DeQuattro Study includes a University of Toronto study which shows

cannabinoids suppress pheochromocytoma cells:

Cell Bio Int 1996 Feb:20(2):147-57 Study Cannabinoid enantiomer action on

the cytoarchitecture. Wilson RG Jr, Tahir SK, Mechoulam R, Zimmerman S,

Zimmerman AM, Department of Zoology, University of Toronto, Canada

"in general, cell viability and cell proliferation were suppressed to a much

greater extent with HU-210 on...PC-12 cells."

HU-210 is a synthetic cannabinoid and PC-12 are actual pheochrochytoma

cells, just like my own.
 
 

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ATTACHMENT -7- BULLETIN 97-BNE-01 'PEACE OFFICERS GUIDE'

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Daniel E. Lungren, Attorney General

California Department of Justice

DIVISION OF LAW ENFORCEMENT

Gregory G. Cowan, Director INFORMATION BULLETIN

Subject:

Peace Officer Guide Compassionate Use Act of 1996 No. 97-BNE-01

Date: 2/24/97 For further information contact

Tom Gorman (916) 227-4044

John Gondnier (916) 324-5169

To: All Chiefs of Police, Sheriff and District Attorneys

PEACE OFFICER GUIDE

COMPASSIONATE USE ACT of 1996

Section 11362.5 Health and Safety Code

Prepared by the

California Attorney General's Office

California state and local law enforcement authorities should continue to enforce all laws against marijuana in the same manner as prior to the passage of Proposition 215 (Compassionate Use Act of 1996), subject to the following guidelines:

I. It is not incumbent on a police officer to inquire whether the individual cultivating, possessing, or using marijuana is doing so for medicinal purposes. It is the responsibility of an individual to claim that he/she has an affirmative defense under Proposition 215 as either a "patient" or "caregiver." If an officer does choose to inquire, he/she should use the questions set out under II(B) or II(D). Some prosecutors may favor the approach that an officer always make these inquiries in situations where the circumstances suggest the defense might be used. The officer should check to determine the local prosecutor's policy.

Should the suspect make the claim that he/she has an affirmative defense to criminal sanctions as a patient or caregiver, the officer should detain the person for the purpose of making those inquires necessary to determine whether there is a legitimate affirmative defense. If the individual refuses to provide information, the officer should note that refusal and should proceed with the arrest (or, if the quantity is less than 28.5 grams, citation and confiscation). If the individual agrees to provide information, some suggested questions to be asked are discussed in subparts B and D. In cases where an individual has been taken into custody and the officer wishes to interrogate, Miranda warnings should be given to ensure that any statements produced by interrogation can be used in the prosecution's case-in-chief. DLE 126 (Rev 10/93)

A. Patient Qualifications

1. Patients must be California residents. Out-of-state residents, temporary visitors or foreign nationals without legal residence in the United States are not covered by this Act. (Section 11362.5 H&S reads, "Seriously ill Californians" (emphasis added).]

2. Patients must be seriously ill. Minor injuries, colds, common flu, most skin cancer, stress, etc., are not covered. [Section 11362.5 reads "Seriously ill" (emphasis added). The diseases highlighted are cancer, ariortxia1 AIDS, chronic pain, spaticity, glaucoma, utiwitis, and migraines. The act does contain the catchall phrase "any other illness for which marijuana provides relief."]

3. The patient must have had an examination by a physician, and the physician must have determined that the specific patient's health would benefit from marijuana as a treatment for the specific illness. (Section 11362.5 H&S reads, ". . .. where the 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 . . . " (emphasis added).]

4. The patient must not be engaged in behavior that endangers others such as driving a vehicle, working with dangerous equipment, or being under the influence in public. (Section 11362.5 reads, "Nothing in this act shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others ... "(emphasis added).] 5. The patient cannot be involved in any diversion of marijuana for nonmedical purposes such as furnishing to a friend or using strictly for recreational or commercial purposes. [Section 11362.5 H&S reads, "Nothing in this act shall be construed... to condone the diversion of marijuana for nonmedical purposes." (emphasis added).]

6. Patients cannot cultivate or possess amounts greater than necessary for their personal medical needs. This precludes commercial and most cooperative style operations. Questioning by an officer should help determine whether the amount is consistent with what was recommended by the doctor for what length of time and for what illness. By way of example, if the patient is undergoing chemotherapy treatment for thirty days and the basis for the recommendation is to combat nausea caused by the therapy, then a supply greater than thirty days is more than necessary for medicinal use.

NOTE: One marijuana plant produces approximately one pound of bulk marijuana. One pound will make approximately 1,000 cigarettes.

Therefore, one can argue that more than two plants would be cultivation or more than necessary for personal medical use.[1]

Health & Safety Code Section 11357 provides that any amount less than 28.5 grams should be deemed to be for personal use. Generally, one gram will make two marijuana cigarettes. The 28.5 gram standard, then, translates into approximately sixty marijuana cigarettes; quantities over this amount may be more than necessary for personal medical purposes.

7. Although there are no age limitations in H&S Section 11362.5, numerous studies confirm that smoking marijuana is a danger to youth. Therefore, it will be difficult in most cases for a doctor acting in good faith to recommend that a youth Smoke marijuana. Officers should continue to handle youth by utilizing Section 601 or 602 of the Welfare and Institutions Code. Failure to act on the part of the officer could place both the officer and his/her department in jeopardy of liability.

8. Patients cannot assert the affirmative defense based on a general recommendation of a physician through such means as a written article, speech, radio show, television appearance, etc. (Section 11362.5 states, "a physician who has determined that the person's health would benefit" (emphasis added).]

B. Patient Questions

1. What is the nature of your serious illness? How long ago was it diagnosed and by whom?

2. Do you use marijuana to provide relief from this illness? Have you tried other drugs? If so, what drugs? Have you tried Marinol?

3. How many marijuana cigarettes do you smoke per day because of your condition?

4. Do you have written recommendation from a licensed California physician in your possession? May I see it? Do I have your permission to contact the physician to verify this recommendation?

---- [1] Obviously, the number of plants will depend on the circumstances. Typically, , a controlled, indoor grow will result in fewer plants lost as well as better, more uniform quality plants. The other extreme would be an infrequently tended outdoor grow.

5. Have you received an oral recommendation from a physician? Who? When did you obtain permission and what exactly did the doctor say? What is his/her address and telephone number? Do I have your permission to contact him/her to verify this recommendation?

6. Did the physician conduct an examination and make a determination that marijuana would be beneficial?

7. How long have you been seeing the doctor? Has he/she done any follow-up examination to monitor your condition? How often are you examined by the physician?

8. Are you willing to sign an authorization allowing an examination of your medical records? Will you give permission to examine your medical records?

C. Caregiver Qualifications

1. The primary caregiver must be an individual specifically designated by the patient. [Section 11362.5 H&S reads ". . primary caregiver means the individual designates by the person exempt under this act.."(emphasis added).]

2. The primary caregiver's role must have been established prior to the designation to be valid. [Section 11362.5 H&S reads, "... primary caregiver . . . who has consistently assumed responsibility..." (emphasis added).]

3. The primary caregiver must have prior and consistent responsibility for the patient's housing, health, or safety. Since the act uses the words "primary" and "consistent," it assumes that the patient is unable to be responsible for or has not been responsible for his/her own housing, health, or safety and that no other person, institution, or government agency is the primary provider for these needs.

4. The primary caregiver is the only individual who can qualify for the specific patient. Secondary or general caregivers may not assert the affirmative defense. (Section 11362.5 is very specific in using the term " primary".]

5. The primary caregiver must have personal knowledge of the doctor's recommendation. [Section 11362.5 reads, "... patient and their primary caregiver who obtain and use marijuana for medical purposes upon the recommendation of a physician . . . " The law continues. " . . . a patient or a patient's primary caregiver who possesses: or cultivates marijuana for personal medical purposes of the patient upon a written or oral recommendation or approval of physician (emphasis added.)

6. The primary caregiver cannot engage in any conduct that endangers others. The primary caregiver cannot use marijuana unless he/she is also a patient.

7 The primary caregiver cannot be involved in diversion of marijuana for non-medical purposes.

8. The primary caregiver cannot possess marijuana for sale or sell marijuana and can only assert an affirmative defense to charges of cultivation or possession for medical use of a specific patient.

D. Caregiver Questions

1. The name, address, and telephone number of the person for whom the individual is a caregiver and how the so-called patient can be contacted. 2. what is the caregiver's relationship to the patient? How long has this relationship existed? What has been the frequency of contact between the caregiver and the patient?

3. What specific conditions qualify the individual as a caregiver? When did the patient request that the caregiver act as caregiver?

4. How long has the individual assumed the caregiver role?

S. What is the patient's serious illness?

6. What is the name of the doctor who made the recommendation? what is his/her address and telephone number? Does the caregiver have personal knowledge of the specific recommendation from the physician?

7. How much marijuana does the patient use and under what conditions?

8. Is the caregiver receiving any remuneration for the service? If so, how much?

9. Who designated the individual as a caregiver, how was designation given, and is the specific physician aware of the individual's status as caregiver?

10. Describe the conditions that exist with the patient that make him or her unable to assume primary responsibility for his/her own housing, health, or safety.

III. Peace Officers‚ Response

A. If, considering the guidelines and questions set out in section II, the officer still thinks, based on the amount, packaging, circumstances, and the answers to the questions, that he/she has probable cause to believe that the individual has cultivated, possessed, or used marijuana for other than medical purposes, the officer may arrest and book the suspect (or, if appropriate, cite and confiscate).

B- If, considering the guidelines and answers to the questions as articulated in section II, the officer thinks, based on the amount, packaging, circumstances and answers to the questions. that the individual may have an affirmative defense to certain marijuana charges, be/she should:

1. Complete the identification of the suspect and cease the detention.

2. If an arrest was made, release the individual from custody under Section 849b of the Penal Code.

3. The officer should seize a sample of the marijuana under either of the circumstances (1 or 2) above and hold it as potential evidence until notified of the result of the district attorney's review. The officer should photograph and/or weigh the quantity if he/she has the equipment available. [2]

4. Complete a detailed report outlining the circumstances of the encounter (which report documents the quantity or estimate of quantity of marijuana) and submit it to the district attorney' S office to accept or reject as a charge.

IV. Other Issues and Questions

Question: Under Section 11362.5 of the Health and safety Code, are cannabis clubs or growers' coop: legal? ---- [2] It is the case that marijuana remains contraband under federal law. There is authority for the proposition that a California peace officer may enforce federal laws. However, D.E.A. has stated that it would in consider "adopting,' a seizure unless then was an arrest and a refusal by the local prosecutor to take the case. Before exercising the authority to enforce federal law, an officer should consult with the local prosecutor's office and D.E.A. as well as with his own departmental policy. There may be policy and liability issues connected with local peace officers enforcing, seizing and destroying marijuana under federal law.

Answer: Generally not, because neither cannabis clubs nor most growers Co-ops can qualify as a primary, caregiver[3]. Although they may be supplying marijuana for medical purposes, they would not qualify as being primarily and consistently responsible for the housing, health or safety of the patient. Cannabis clubs and co-ops also are not "the individual" as specified under Section 11362.5(e). Also, Proposition 215 did not amend Health and Safety Code Section 11366.5 (making it a crime to maintain a place for selling, giving away or using marijuana) or Health and safety Code Section 11366.5 (Making it a crime to use a premises to store or distribute marijuana), either or both of which sections would apply to clubs.

The intent of the Act is to provide a primary caregiver for those individuals who are incapable of providing for themselves because of the seriousness of their illness. The primary caregiver must also have specific knowledge of the physician recommendation. The simple word of a person that he/she is a patient who has a physician's recommendation is insufficient. When investigating a cannabis club or co-op, in addition to laws against possession, possession for sale and sale of marijuana officers should consider:

1. Section 11364.5 of the Health and Safety Code (requirements for sale of drug paraphernalia).

2. Section 11364.7 H&S (unlawfully providing drug Paraphernalia)

3. Section 11366 H&S (maintaining a place for sale)

Under certain circumstances, a true cooperative cultivation of a very small number of plants by properly qualified patients and/or caregivers might qualify for the affirmative defense.

Question: Is concentrated marijuana or hashish included in the definition of marijuana under Section 11362.5?

Answer: Yes, it would appear to be. This Act does not differentiate between marijuana and concentrated cannabis as is the case throughout the Health and Safety Code. Based on the definition of marijuana in Section 11018, hashish is included.

--- [3] A superior court judge in a civil proceeding has ruled that, under certain carefully controlled circumstances, a club may be a primary Caregiver. This ruling is being challenged in the appellate court.. It is still the position of the authors that most clubs and/or growers' Co-ops cannot quality as primary caregivers. Call John Gordnier, (916) 324-5169, if you have questions about this case. 7

Question: To what sections of the Health and Safety Code does the affirmative defense as outlined in Section 11362.5 specifically apply?

Answer: The only two sections in the Health and Safety Code that are specifically affected by tile Compassionate Use Act are Sections 11357 (unauthorized possession of marijuana) and Section 11358 (unauthorized planting, cultivating, or processing). There is an assumption that, in order for the patient to obtain marijuana, transporting and furnishing as described in Section 11360 H&S may be affected in a very limited way. Neither a caregiver nor a patient may possess marijuana for sale, sell marijuana (11360 H&S), or employ or sell to minors (11361 H&S).

Question: Are applicable drug paraphernalia laws affected by Section 11362.5 of the H&S code?

Answer: No. Those drug paraphernalia laws which apply to marijuana, such as Section 11364.5, or 11364.7 related to displaying, sale or furnishing, are still applicable.

Question: If an officer has information that the possession or cultivation of marijuana might be for medicinal use, should this be included in affidavits and search warrants?

Answer: Yes. The magistrate should be provided all pertinent facts to help make a determination whether probable cause exists for issuance of a search warrant. An omission of material facts could be grounds for overturning the warrant.

Question: Does Section 11362.5 affect searching a vehicle for marijuana?

Answer: Generally not. As long as a peace officer has probable cause based on tile arrest or other circumstances, he or she may search a vehicle for marijuana.

V. General Statement

California officers should use common sense when applying the Compassionate Use Act of 1996 and abide by the spirit of the voters narrow intention regarding proposition 215. officers should be familiar with both department policy and the policy of his/her district attorney's office as it applies to Section 11362.5 of the Health and Safety Code. This new law should be dealt with professionally, with special care not to violate anyone's right. or develop bad-case law. Guidelines for dealing with physicians who recommend marijuana will be covered in a separate document.

IF YOU BECOME AWARE OF UNUSUAL CASE CIRCUMSTANCES, COURT DECISIONS. OR ATTEMPTS BY CITIZENS TO MISUSE SECTION 11362.5 OF THE H&S CODE, PLEASE CONTACT AND REPORT THESE TO THE CALIFORNIA DISTRICT ATTORNEYS' ASSOCIATION AT (916)443-2017. FAX (916)443-0540. S0 THEY CAN BE SHARED WITH LAW ENFORCEMENT STATEWIDE..
 
 

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ATTACHMENT -8- OAKLAND GUIDELINES

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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

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