RIVERSIDE COUNTY: New medical marijuana clinic coming

K Kaufmann • The Desert Sun • November 10, 2007

Riverside County is about to get a new clinic for medical marijuana
patients.

And Lanny Swerdlow, president of the Marijuana Anti-Prohibition
Project, is going to be running it.

Swerdlow, also a registered nurse, announced he will be opening the
clinic, to be called THCF Medical Clinic, at 647 N. Main St.,
Riverside. The clinic should be open by early December, he said.

THCF stands for The Hemp and Cannabis Foundation, a nonprofit that
runs similar clinics in Colorado, Hawaii, Oregon and Washington. The
clinics issue letters of recommendation to patients. They do not sell
marijuana.

The Riverside location "is right in the heart of the Inland Empire;
nobody's more than 30 minutes away from clinic," Swerdlow said.

Swerdlow said he decided not to open the clinic in the Coachella
Valley because the area already has at least one other doctor, Dr.
Joseph Durante of Rancho Mirage, writing letters of recommendation.

Ryan Michaels, a medical marijuana patient in Riverside, said most
people seeking letters in the Inland Empire now go to Los Angeles or
the desert.

"I had to go to Hollywood," Michaels said. "I was looking for someone
who would be in accord with the law. I didn't want a fly-by-night."

California law allows medical use of marijuana for patients who have a
doctor's letter of recommendation. Federal law bans all use of the drug.

Swerdlow said the Riverside clinic may require patients to submit
medical records even before making an appointment.

He did not release the names of the doctors who may work at the
clinic, but said all patients will receive a physical examination.

Ingrid Wyatt, spokeswoman for the Riverside County District Attorney's
Office, said as long as the clinic follows state law, it should have
no problems.

"I don't want to put our seal of approval on it," Wyatt said. "(But)
as long as a medical doctor is making the recommendation and there's
no dispensing, it falls within the confines of the law."

http://www.mydesert.com/apps/pbcs.dll/article?AID=/20071110/NEWS01/711100327

OREGON: Hashish case brings issue to forefront

Derived drug's place unclear under medical marijuana statutes

RUTH LIAO
Statesman Journal

November 10, 2007

The details concerning a Marion County grand jury's refusal to indict
a Keizer man for turning his medical marijuana into hash oil remain
secret by law, but the decision has rekindled the debate about
interpretations of Oregon's medical marijuana statutes.

Advocates of medical marijuana providers said some law enforcement
officials still have a hard time accepting legal medicinal users.

"It's still difficult for people to get used to the fact that it was
once someone they were putting in jail," said Brian Michaels, a
Eugene-area lawyer who is a member of the Oregon Medical Marijuana Act
advisory committee.

But prosecutors and law enforcement officers said that hashish is
illegal under federal controlled-substance guidelines, which Oregon
has adopted. Oregon's medical marijuana act allows for marijuana
derivatives, but hashish is considered a separate substance, said
Deputy District Attorney Courtland Geyer.

"It is classified as a separate drug under the federal Controlled
Substances Act," Geyer said. "And they are treated as separate drugs
in Oregon's entire network of drug laws."

Anthony Wyatt Beasley, 28, of Keizer was arrested Oct. 19 after police
were called to his home on a report of a possible bomb threat, police
said. Officers found PVC pipes filled with a concentration of
marijuana and police thought hashish was being made.

Beasley, a medical marijuana patient and provider, told police he was
extracting tetrahydrocannabinol, or THC, from his medicinal marijuana.

Michaels thinks hashish is a compound of marijuana and should be
considered legal.

"It's become common to distinguish in the lexicon of our culture
marijuana -- bud and hashish -- but they're both represented under
marijuana," Michaels said.

While Beasley's case was dismissed this week, other cases in Marion
County regarding the use of hashish are pending, Geyer said.

Beasley's case initially drew attention because he was growing 24
plants in his backyard, which bordered a parking lot of McNary High
School.

Former Keizer City Council Charles Lee wrote a letter to Keizer City
Council, asking if it would consider an ordinance prohibiting medical
marijuana from being grown within a 1,000 feet of a school.

The outcome of Beasley's case did not affect his opinion, Lee said.

"It's just the concept of safety and welfare of kids and keeping those
things within 1,000 feet of a school," Lee said.

Lee said he also talked with Marion County commissioners about
adopting a similar ordinance for the county.

Madeline Martinez, executive director of the marijuana advocacy group
Oregon NORML, said law enforcement officials should be trained about
understanding the legal interpretations of the law.

Martinez said she's offered to conduct training for law enforcement
officials and promotes continual education of medical marijuana providers.

http://www.statesmanjournal.com/apps/pbcs.dll/article?AID=/20071110/NEWS/711100320

The Clash Between Federal Drug Law and California's "Medical
Marijuana" Law: How Two Interesting Recent Events Illustrate Their
Interplay

By VIKRAM DAVID AMAR
----
Friday, Nov. 09, 2007

Two news items during the past couple of weeks in California highlight
the complicated legal and political tangle that is American federalism
- the relationship between federal and state governments -- today.
Both incidents involve the interplay between, on one hand,
California's (now decade-old) decision to decriminalize marijuana use
for medicinal purposes, and, on the other hand, the continuing
illegality under federal law of all marijuana cultivation, possession,
distribution and use, for any purpose.

The two events present radically different facts: One involves an
alleged criminal conspiracy that is far-flung and linked to violence,
whereas the other involves a civil lawsuit brought by a seemingly
productive employee against his employer. Yet the two episodes, taken
separately and together, nicely illustrate key aspects of the ongoing
tug-of-war between so-called "states' rights" and federal supremacy.

The First Episode: The Criminal Charges Against Two Entrepreneurial
Brothers

On October 30, federal drug agents executed numerous search warrants
against Winslow and Abraham Norton, two young brothers (Winslow is 26
and Abraham 23) who are alleged to have sold an estimated $49 million
of marijuana at various locations in the Bay Area during the past
three years. The Nortons' medical marijuana dispensary was registered
and given a permit to operate under the regime prompted by
California's Compassionate Use Act ("the Act"), a 1996 initiative
measure adopted statewide by voters that decriminalizes, under state
law, marijuana cultivation, distribution, and use in those instances
where a physician has given a written or oral recommendation or
approval to a patient to use marijuana.

Under the Act and subsequent implementing legislation, an Alameda
County Sheriff's Deputy regularly visited the Nortons' facilities to
ensure that only those persons with physician recommendations were
being given the drug.

According to press accounts, the Nortons paid state and federal income
taxes on (at least some) of their income, rewarded their workers well
and gave them benefits, and even contributed charitably to the community.

Nonetheless, the Nortons appear to have been flagrantly violating the
federal Controlled Substances Act, which designates marijuana as an
illegal contraband substance whose manufacture, distribution and use
is prohibited in virtually all instances.

The Constitutional Reason Federal Law Trumps California Law Here

How, some people in California are asking, can the feds impose their
will on the people of California, who have chosen a different answer
than has Congress to the controversial and vexing question of whether
marijuana use should ever be allowed?

The answer is short and sweet: The Supremacy Clause of the U.S.
Constitution makes validly-enacted federal statutes the "Supreme" law
of the land, along with the U.S. Constitution itself. So, as long as
the Controlled Substances Act is within Congress' constitutional
powers to enact (as the Supreme Court held it was a few years ago, in
Gonzales v. Raich), Californians can have no state-conferred immunity
to be free from federal restraints and prosecution.

Readers who don't easily see why federal statutes ought to be supreme
over - and not constrained by - inconsistent state laws may want to
consider the example of Southern resistance to federal civil rights
laws in the 1950s and 1960s. There too, proponents of local authority
argued that the national legislative policy adopted by Congress in
Washington DC - in that instance, that racial discrimination in
employment and housing should be barred - should not be imposed on
states and localities that had reached a different resolution as to
how they believed the races ought to interact. In that setting,
federal law won out. So too here.

Consider another example in which federal supremacy seems quite
intuitive and attractive. Suppose Congress outlawed use of a
particular environmental pollutant that many considered dangerous. If
a majority of voters in any one state nonetheless wanted to allow
persons within the state to use that pollutant, then those voters
could decriminalize use of the pollutant under state law, but could
not prevent the federal government from punishing those within the
state who emit the dangerous chemical.

Is Federal Supremacy Regarding Civil Rights and Pollution Meaningfully
Different from Federal Supremacy Regarding Marijuana?

One way to attempt to distinguish the civil rights and pollution
examples from example taken from the marijuana setting would be to
point out that unless there is federal enforcement in the civil rights
and environmental law areas, innocent victims who happen to live in
the permissive state may suffer. In other words, there are spillover
effects from a state's decision to go its own way concerning racial
discrimination and pollution - effects that may harm individuals both
in that state and in other states.

But the same can arguably be said for marijuana. If, for example,
marijuana use does create a risk that some persons may drive unsafely
or do other unwise things while under the influence, then the effects
of this behavior are not limited to the marijuana users themselves,
nor are the effects even limited to Californians.

California's medical marijuana scheme undoubtedly affects the
marijuana market in bordering states, and creates spillover effects in
those other states. Drivers cross state lines, as does the violence
that tends to follow business enterprises that are illegal in some
places. It does not seem coincidental that the Norton brothers'
operations involved many young, seemingly healthy customers who
nonetheless have physician recommendations. Nor does it seem
coincidental that the Nortons have been plagued by armed robberies;
news reports suggest that, at least four times, armed assailants have
either killed, shot or robbed the Nortons themselves or their
employees or customers. This kind of violence rarely can be confined
to one small location, or even one state.

Indeed, in upholding Congress' power to regulate all marijuana,
including medicinal marijuana, the Supreme Court in Raich noted that
the federal government cannot count on California to keep its
medicinal marijuana - or the effects of this marijuana - within state
boundaries.

The Second Event: The California Supreme Court Hears Ross v.
Ragingwire Telecommunications Inc.

The second illustration that helps frame federalism issues in this
area is the Ross v. Ragingwire case, in which the California Supreme
Court heard oral arguments this past Tuesday. Ross is a U.S. Air Force
veteran who sustained disabling injuries as a result of his military
service. Since 1999, he has been taking marijuana on the advice of his
physician to alleviate back pain. He was hired by the Sacramento
technology company Ragingwire, which, pursuant to company policy,
required him to submit to a drug test.

Ross complied, and was very open about his medicinal use of marijuana.
But when his drug tests came back and they were (predictably) positive
for marijuana, he was terminated. Ross then brought an action under
the California Fair Employment and Housing Act (FEHA). FEHA, a state
law similar to the Americans With Disabilities Act, requires employers
in California to accommodate the physical disabilities of an employee
or would-be employee so long as the employee can, with accommodation,
perform the essential functions of the job. Ross argued that since he
was disabled but could, through the use of medical marijuana, perform
the essential functions of his job, Ragingwire violated his state law
rights in terminating him on account of his marijuana use.

The lower courts ruled in favor of the employer, reasoning that FEHA
does not generally bar employers from using drug tests or from
requiring that all employees refrain from illegal drugs. Since
marijuana is an illegal drug under federal law even though its use by
Mr. Ross was not criminal under California law, the lower courts
reasoned, employers can terminate marijuana users.

How Is the California Supreme Court Likely to Decide the Ross Case?

Now, the California Supreme Court must decide how to interpret the
FEHA in light of this complicated interaction with the federal
Controlled Substances Act.

A few things seem clear. One is that federal law could, if Congress
wanted it to, explicitly empower employers to discriminate against
marijuana users, even if marijuana use is decriminalized under state
law. In legal parlance, Congress could, if it wanted to, "preempt"
state FEHA claims based on Ross' theory.

But nothing in the federal Controlled Substances Act or elsewhere in
federal law seems to say or do that. In other words, there is no
federal preemption or (as in the Norton case) federal enforcement of
federal law. Instead, there is only the question of whether FEHA
claims, as a matter of California state law, can be based on failure
to accommodate medicinal marijuana users, given that marijuana is a
federally-proscribed substance.

In deciding what FEHA means, or should mean, the California Supreme
Court needs to balance a number of factors. First, if Ross prevails,
then at a minimum, California employers who are constrained to allow
medicinal marijuana should not be held liable under state tort claims
for any injuries traceable to the marijuana use. (The state Supreme
Court should have the power to confer this tort immunity, since it
fashions California tort law. In contrast, the California Justices
cannot immunize employers from liability under federal law, but hiring
medicinal marijuana users wouldn't seem obviously to violate any
federal law.)

Second, even if the specter of state tort liability is removed from
employers, it is still not clear whether they should be forced to hire
persons who are breaking federal law. Should an employer be forced to
bear the (small but perhaps non-trivial) risk that his employee will
be arrested by the feds (and thus unavailable for work)? Or that the
workplace may be the target of a federal law enforcement search? Or
that residual marijuana in the employee's physical system will affect
his job performance?

On that last point, recall that FEHA claims are viable only if the
employee can perform the essential job functions. So ruling for Ross
wouldn't require employers to hire employees whose medical marijuana
use deeply impairs job performance. Still, there is a difference
between performing the essential functions of a job and excelling at
the job, and there is an argument that an employer should be free to
pursue excellence, not bare competence, when a federally-proscribed
drug is responsible for any lapse in job performance.

Finally, and perhaps most importantly, the California court will have
to consider what the California legislature intended when it enacted a
provision in 2003 that made clear that employers did not have to
accommodate medical marijuana "use" on the jobsite "premises" or
during the hours of employment. Does this provision suggest that
accommodation is required so long as the medicinal marijuana is
ingested off the employer's property? Or does this language create no
such strong inference? And what does "use" mean here, anyway? Is a
person "using" marijuana on the jobsite if it is still in her
bloodstream when she is on the job, even though she inhaled it at home?

These and other questions are the ones the California Supreme Court's
Justices will grapple with, as they issue an opinion some time in the
next few months trying to make sense of the federal-state medicinal
marijuana hash. Whatever result the Court reaches, both the decision
and the fallout should be very interesting.

Vikram David Amar is a professor of law at the University of
California, Davis School of Law. He is a 1988 graduate of the Yale Law
School, and a former clerk to Justice Harry Blackmun. He is a
co-author, along with William Cohen and Jonathan Varat, of a major
constitutional law casebook, and a co-author of several volumes of the
Wright & Miller treatise on federal practice and procedure. Before
teaching, Professor Amar spent a few years at the firm of Gibson, Dunn
& Crutcher.

http://writ.news.findlaw.com/amar/20071109.html

Mellowing Out on Marijuana

By Rita Healy/Denver

Those Rocky Mountains are getting higher. Two municipalities — Denver,
Colorado, and the small town of Hailey, Idaho — passed pro-marijuana
measures on election day this week, joining a growing number of
liberal localities that are reducing or removing penalities on using
pot. It's part of a slowly evolving populist rehabilitation of the
drug. San Francisco, Oakland and Santa Monica in California, along
with Missoula, Montana, and Seattle, Washington, have previously
passed laws that give the lowest priority to enforcing existing
marijuana laws.

Federal regulations, which supercede local ordinances, continue to
prescribe heavy penalties — even in some cases death — for major
dealers of illegal drugs, including marijuana. The federal penalty for
possession of even a miniscule amount is a misdemeanor punishable by
one year in prison and $1,000. Penalties are higher with cultivation,
sale and crossing state lines. However, magistrates generally use
state and local laws as sentencing guidelines — unless there is
federal intervention, which doesn't occur in every drug case because
they would increase court time and costs.

Not every attempt at liberalizing the laws has been successful. Last
year, the pro-marijuana lobby tried to pass legalization laws in
Nevada and Colorado; both failed. But this week's results in Denver
heartened pro-pot activists: 57% of voters in the city approved
"lowest law enforcement priority." Coming after a 2005 vote removing
all penalties for possessing small amounts, Denver joins Alaska to
become only the second place in the U.S. offering a free ride to users
caught with less than an ounce. Denver's local and political culture
has been amenable to such legal re-orientations. Last summer, Denver
Mayor John Hickenlooper and four of the 13-member city council told a
local newspaper they had smoked pot in the past, while another six
councilmen refused to answer and only three said no.

The Denver measure was pushed by a single activist: Mason Tvert, who
organized SAFER, Safer Alternative For Enjoyable Recreation, on the
University of Colorado and Colorado State University campuses, and now
runs it from his Denver home. He was funded in part by the Marijuana
Policy Project, which received $3 million this year from Peter Lewis,
the heir of the Progressive Insurance Companies, who helps fellow
billionaire George Soros support liberal causes.

More remarkable is Tvert's counterpart in Idaho, Ryan Davidson of
Boise. Davidson operated without any MPP money after failing to get
measures on the ballot in 2004 in a number of Idaho cities. This past
year, he got it on Hailey's ballot after winning a ruling in federal
district court that overturned Hailey's law preventing nonresidents
from circulating petitions. "This was the least funded campaign in
history," he says. "I spent maybe 20 bucks. I got the signatures on
the petitions on my own dime. I spread the word through e-mail and
phone calls and posting on blogs, I printed some fliers off my
computer, photocopied them at Kinko's and put them under car
windshield wipers on Monday."

Jim Spinelli, executive director of Hailey's Chamber of Commerce,
insists there is no grassroots pro-pot movement and expressed surprise
that three of four pro-pot measures passed: legalizing medical
marijuana and decriminalizing both marijuana itself and industrial
hemp. (The only measure that failed asked for a straight-out
legalization of marijuana.) A town of 8,500, Hailey is 12 miles from
the Sun Valley ski area. When Spinelli worked Tuesday's election, he
says he saw a lot of older affluent voters and young people from the
service sector. In Idaho, being under the influence of pot in public
draws a six-month sentence and $1,000 fine. At least in Hailey, if the
local police — as opposed to the state police — handle an arrest,
local ordinance will be applied.

In 38 states, incarceration still awaits even first-time offenders
possessing small amounts of marijuana. In Connecticut, possessing a
"useable amount" is punishable by a year in jail and $1,000 fine.
Nevada sends its pot users — possessing any amount — into rehab or
treatment and imposes a $600 fee. Federal law calls for a year in jail
and $1,000 for anyone caught with any amount. The National
Organization for the Reform of Marijuana Laws (NORML) says there are
65,000-85,000 people incarcerated in this country for cannabis-related
reasons.

But NORML spokesman Allen St. Pierre points out that the law is
growing increasingly lenient in many other places. In Alaska, there's
no jail or fine for holders of an ounce or less in their homes. In
Nebraska, possession of less than an ounce is simply a civil citation.
In Ohio, no criminal record is kept of a minor misdemeanor, that is,
possession of less than 100 grams. Since the 1970s, the home-rule
cities of Ann Arbor and Madison — who are allowed by their states to
let city regulations supersede state laws for the most part — have
simply imposed $25 fines for possession. St. Pierre says NORML and
related organizations expect 2008 to be "much busier" for pro-pot
activism and referendums. And even though federal law is the final
word, St. Pierre says that when campuses, municipalities, counties and
states vote, politicians listen. "It speaks to the mores and values of
those administering justice. As Tip O'Neill said, 'All politics are
local.'"

http://www.time.com/time/nation/article/0,8599,1682111,00.html

COLORADO: Legal fight seeks to set precedent for marijuana law enforcement

Student stands to lose financial aid after caught with a gram of pot

by Eli Stokols, News2
November 10, 2007

DENVER (KWGN) — Just days after voters passed an ordinance designating
the enforcement of marijuana possession laws the city's lowest
law-enforcement priority, the activists behind the new ordinances
headed to court hoping to force the issue.

Hayley Jaquah is fighting a misdemeanor charge for possession of
marijuana from September, when a police officer found just over a gram
of marijuana in her purse on the 16th Street Mall.

Jaquah, 25, stands to lose her financial aid money -- and thus her
ability to earn her anthropology degree at Metro State -- because of a
federal provision that strips financial aid from any recipient found
guilty of a drug-related charge.

"It was actually legal for me to have the amount [of marijuana] I had
since I'm over 21," Jaquah said.

And, according to a city ordinance passed by voters in 2005, she's
right. That ordinance made possession of an ounce or less of marijuana
legal within city limits.

Since then, however, lawmakers have deferred to the state law that
renders any quantity of marijuana illegal.

"It's confusing," said Brian Vicente, Jaquah's attorney. "Which law
are citizens supposed to believe."

Jaquah's now could be come an interesting test case, as a jury would
be asked to decide whether or not she was in violation of the law.

"If an individual relies on a local law for how to act, they cannot be
found guilty of breaking a separate law," Vincente said.

After Tuesday's passage of another ordinance calling for leniency in
enforcing marijuana laws, Vincente and Jaquah believe that the city,
by even taking this case to trial, is slapping voters in the face --
not to mention wasting their tax money.

"It's in direct violation of the will of the voters," Vincente said.
"It's irrational and a waste of taxpayer dollars. The city stands to
gain $100 fine; and Hayley stands the very real possibility of losing
her ability to go to college."

The City Attorney's office declined to comment on this story.

Copyright © 2007, KWGN

http://cw2.trb.com/news/kwgn-pot-fight,0,1641448.story?coll=kwgn-home-2