13 comments | In November 1996, California voters passed the Proposition 215 initiative. The initiative set out to make medical marijuana available to people with certain illnesses. The initiative was later supplemented by the Medical Marijuana Program Act; which was enacted as Senate Bill 420 by the state legislature in 2003 and became effective in January of 2004. Across the state, counties have varied in their responses to medical marijuana.
Some counties have allowed businesses to open and provide medical marijuana. Others have disallowed all such establishments within their borders. Several counties once issued business licenses allowing medical marijuana stores to operate, but no longer do so.
This paper discusses the legality of both medical marijuana and the businesses that make it available.
History of Medical Marijuana
The world history of marijuana for medicinal use is long and varied. Among other illnesses, the Chinese used it to treat gout, malaria and memory. Hindu sects have used it as a stress reliever. Ancient physicians prescribed marijuana for pain, childbirth and earaches. Early Americans used it to treat skin inflammation, rabies, and tetanus.
However, evidence that marijuana lessens the symptoms of any medical condition is largely anecdotal. Additionally, medical marijuana is normally administered by smoking and not a single Federal Drug Administration approved medication is smoked.
Federal Law
Federal law clearly and unequivocally states that all marijuana related activities are illegal. Consequently, all people engaged in such activities are subject to federal prosecution. The United States Supreme Court recently decided, Gonzales v. Raich, (2005) 125 S.Ct. 2195, making the federal position absolutely plain. The court has declared that, despite the attempts of several states to partially legalize marijuana, it continues to be wholly illegal since it is classified as a Schedule I drug. As such, there are no exceptions to its illegality. The mere categorization of marijuana as “medical” by some states fails to carve out any legally recognized exception regarding the drug.
Marijuana, in any form, is neither valid nor legal.
Clearly the United States Supreme Court is the highest court in the land. Its decisions are final and binding upon all lower courts. The court invoked the United States Supremacy Clause and the Commerce Clause in reaching its decision. The Supremacy Clause declares that all laws made in pursuance of the Constitution shall be the “supreme law of the land” and shall be legally superior to any conflicting provision of a state constitution or law. The Commerce Clause states that “the Congress shall have power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”6
Gonzales v. Raich addressed the concerns of two California individuals growing and using marijuana under our state’s medical marijuana statute. The court explained that under the Controlled Substances Act marijuana is a Schedule I drug and is strictly regulated. “Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment.”
The court ruled that the Commerce Clause is applicable to California individuals growing and obtaining marijuana for their own personal, medical use. Under the Supremacy Clause, the federal regulation of marijuana, pursuant to the Commerce Clause, supersedes any state’s regulation, including California’s. The court found that the California statutes did not provide any federal defense if a person is brought into federal court for cultivating or possessing marijuana.
Accordingly, there is no federal exception for the growth, cultivation, use or possession of marijuana and all such activity remains illegal. California’s Compassionate Use Act of 1996 and Medical Marijuana Program Act of 2004 do not create an exception to this federal law.
All marijuana activity is absolutely illegal and subject to federal regulation and prosecution.
California Law
On November 5, 1996, California voters adopted Proposition 215, an initiative statute authorizing the medical use of marijuana. The initiative added Health and Safety code section 11362.5 which allows “seriously ill Californians the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician . . . .”
The codified section is known as the Compassionate Use Act of 1996. Additionally, the state legislature passed Senate Bill 420 in 2003; it became the Medical Marijuana Program Act and took effect on January 1, 2004. This act expanded the definitions of “patient” and “primary caregiver” and created guidelines for identification cards.
It defined the amount of marijuana that “patients” and “primary caregivers” can possess. It also created a limited affirmative defense to criminal prosecution for qualifying individuals that collectively gather to cultivate medical marijuana.
Despite their illegality, the medical marijuana laws in California are specific. The statutes craft narrow affirmative defenses for particular individuals with respect to enumerated marijuana activity. All conduct, and people engaging in it, that falls outside of the statutes’ parameters remains illegal under California law. Relatively few individuals will be able to assert the affirmative defense in the statute. To use it a person must be a “qualified patient”, “primary caregiver”, or a member of a “cooperative.”
Once they are charged with a crime, if a person can prove an applicable legal status, they are entitled to assert this statutory defense.
Store-front medical marijuana cooperatives and dispensaries
Since the passage of the Compassionate Use Act of 1996, many store-front medical marijuana businesses have opened in the state.24 Some are referred to as dispensaries, some as cooperatives; but it is how they operate that removes them from any umbrella of legal protection. These facilities operate as if they are pharmacies. Most offer different types and grades of marijuana. Some offer baked goods that contain marijuana. Monetary donations are collected from the patient or primary caregiver when marijuana or food items are received. The items are not technically sold since that would be a criminal violation of the statutes. These facilities are able to operate because they apply for and receive business licenses from cities.
Federally, all existing store-front medical marijuana businesses are subject to search and closure since they violate federal law. Their mere existence violates federal law. Consequently, they have no right to exist or operate, and arguably counties in California have no authority to sanction them.
Similarly, in California there is no apparent authority for the existence of these store-front medical marijuana businesses. The Medical Marijuana Program Act of 2004 allows patients and primary caregivers to grow and cultivate marijuana, no one else.
Although Health and Safety Code section 11362.775 offers some state legal protection for true collectives and cooperatives, no parallel protection exists in the statute for any store-front business providing any narcotic.
The common dictionary definition of collectives is that they are organizations jointly managed by those using its facilities or services. Legally recognized cooperatives generally possess “the following features: control and ownership of each member is substantially equal; members are limited to those who will avail themselves of the services furnished by the association; transfer of ownership interests is prohibited or limited; capital investment receives either no return or a limited return; economic benefits pass to the members on a substantially equal basis or on the basis of their patronage of the association; members are not personally liable for obligations of the association in the absence of a direct undertaking or authorization by them; death, bankruptcy or withdrawal of one or more members does not terminate the association; and [the] services of the association are furnished primarily for the use of the members.” Medical marijuana businesses, of any kind, do not meet this legal definition.
Actual medical dispensaries are commonly defined as offices in hospitals, schools, or other institutions from which medical supplies, preparations, and treatments are dispensed. Hospitals, hospices, home health care agencies, and the like, are specifically included in the code as primary caregivers as long as they have “consistently assumed responsibility for the housing, health, or safety” of a patient.30 Clearly, it is doubtful that any of the store-front medical marijuana businesses currently existing in California can claim that status. Consequently, they are not primary caregivers and are subject to prosecution under both California and federal laws.
Riverside County
There appear to be four dispensaries currently operating in the County of Riverside: the Healing Nations Collective in Corona, Compassionate Caregivers in Palm Springs, C.A.P.S. in Palm Springs and CannaHelp31 in Palm Dessert. The County of Riverside is currently considering ordinance number 348.4403 which provides for the zoning and licensing of medical marijuana cooperatives in the county. As discussed above, all such store-front medical marijuana businesses are illegal. Consequently, all are subject to criminal prosecution.
Conclusion
In light of the United States Supreme Court’s decision and reasoning in Gonzales
v. Raich, the United States Supremacy Clause renders California’s Compassionate Use
Act of 1996 and Medical Marijuana Program Act of 2004 illegal.
No state has the power to grant its citizens the right to violate federal law. People have been, and continue to be, federally prosecuted for marijuana crimes. We conclude that medical marijuana is not legal under federal law, despite the current California scheme.
Furthermore, store-front medical marijuana businesses are prey for criminals and create easily identifiable victims. The people growing the marijuana are looking to and employing illegal means to protect their valuable cash crops.
Many distributing marijuana are hardened criminals. The others distributing marijuana to the businesses are perfect targets for thieves and robbers. They are being assaulted, robbed and murdered.
Those buying and using medical marijuana are also being victimized. Additionally, illegal medical marijuana facilities have the potential for creating liability issues for counties and cities.
The Riverside County District Attorney’s Office believes that the cooperatives being considered are illegal and should not be permitted to exist within the County’s borders. They are a clear violation of federal and state law, they invite more crime, and they compromise the health and welfare of the citizens of this County.
The article is a portion of a White paper written in 2006. John Hall, a spokesman for District Attorney Rod Pacheco, descibed the document as a resource for the community stating the position of the office concerning medical marijuana.
Read a reader’s response to the County’s position on medical marijuana here.
Tags: medical marijuana, Riverside County District Attorney, Rod Pacheco, SWRNN
Comment by: Paul Posted: November 21, 2009, 1:24 am
This may still be the opinion of Rod Pacheco or is it?
There have been several important state court decisions since this was written in 2006.
There have been several state MMJ cases appealed to the U.S. Supreme Court that have upheld California Laws, and the U.S. Supreme Court declined to hear these cases. Federal Law is not always superior to state law.
For example San Diego County refused to issue the medical marijuana ID cards on that basis until the middle of 2009. The SCOTUS refused to hear the case, so San Diego and San Bernardino Counties now process applications for the ID cards.
Another case is the Garden Grove Case,
The police pulled a man over for a minor traffic stop and found he had a few grams of medical marijuana with him, but did not have his doctor recommendation letter with him, so the police took the MMJ.
He paid the traffic fine and sought his MMJ back. The judge ordered the city police to give it back, but they said NO! They claimed it was illegal under Federal Law.
He sued to get it back with the help of an organization that works for MMJ patients to have safe access. The state AG supported his claim to get it back in the local court with a friend of the court brief, so police associations filed briefs opposing giving it back.
The city claimed Federal Law preempted the state MMJ laws.
The court ruled in favor of the state laws.
The city appealed to the state supreme court, and eventually to the US Supreme Court that declined to hear the case in December 2008.
It cost the city over $100,000 to fight the case AND had to pay $139,000 to the association that helped the man get his 8 grams of MMJ worth about $200 back.
Eight grams is less than a third of an ounce.
In some California jurisdictions the local authorities are now acting in accordance with the new state laws, and in other locations they are ruthlessly targeting nice normal citizens who have medical conditions and who benefit greatly with the use of medical marijuana, and charging them with felonies.
Some places the authorities are even conducting heavily armed swat style raids without valid search warrants even on single moms and elderly women who have less MMJ on hand than is allowed by state law who may have just shared a quarter ounce of MMJ with a neighbor who was also qualified to possess and use MMJ and accepted reimbursement.
Comment by: Paul Posted: November 21, 2009, 1:41 am
The State Attorney General Guidelines for the state MMJ laws issued in September 2008 disagree strongly with nearly all the conclusions in the 2006 opinions by Rod Pacheco.
It is totally clear in tgh eAG guidelines that properly ran non-profit collectives can have store front outlets, and may “sell” over the counter to members who contribute only money.
Only instead of “sell” it is called “allocate resources”
California sworn officers are to obey state laws and do not have an automatic obligation to enforce Federal Laws
Comment by: Paul Posted: November 21, 2009, 2:26 am
Marijuana is not really a schedule one drug by its nature.
Only on paper and that is for political purposes. It has a lot to do with congress protecting the tobacco and alcohol industries, and protecting the multibillion-dollar prescription drug industry over past decades. .
It also has something to do with WWII when our supply of rope was cut off from the Philippines and in early 1942 the US set up 400,000 acres growing a cousin of marijuana in the USA. Then Congress passed a law about it.
The medical scientists in the DEA years ago ruled that marijuana does not belong in schedule one and ruled it should be removed. However the politically appointed head of the agency over ruled the DEA administrative judge and kept it in schedule one for political reasons.
So yes, DEA agents still raid and arrest people for it being a schedule one drug
and punish with harsh sentences, whereas it is not very harmful as far as real medicine goes and it does have much medical potential.
Some states have laws that several pounds possession can lead to 10 to 15 years in prison.
While some counties in California allow anyone with the doctor recommendation to have three pounds, and those with a higher requirement to possess more pounds.
In fact the main ingredient in marijuana THC was allowed to be manufactured and prescribed in schedule 2 for a few years and is now in schedule 3, with refillable prescriptions allowed. But it costs $800 to $1600 per month for a typical medical user, and does not treat as effectively. There are other medicines in marijuana flowers that also contribute to its healing powers.
Comment by: PaulM (not Paul) Posted: November 21, 2009, 3:04 pm
Pacheco - Get with the 21st century, and then listen to the will of the people.
Comment by: Paul Posted: November 21, 2009, 3:13 pm
The article mentions Federal Supremacy via the interstate and foreign COMMERCE CLAUSE, that copngress uses to try to control nearly everything.
That is why the California laws making an exclusion from prosecution for violating STATE laws about of growing, possession, transportaion, using, helping other qualifed patints use medical marijuana laws
ALSO
state specifically that these laws apply exclusively to marijuana GROWN within California.
Comment by: Paul Posted: November 21, 2009, 3:41 pm
Another comment on Gonzales v. Raich
The issue was whether FEDERAL Agents could raid in California to enforce this Federal law. A number of state attorney generals filed briefs to support states rights.
It was NOT about whether state law enforcement had to enforce the Federal Law.
Just Google it and learn more about it.
The court ruled it could still do so, kind of recognizing it was ridiculas in the case at hand, I think it was about someone’s home grown seven plants. However the court was afraid to allow an exception for states rights in fear that it would wipe out the whole enforcement structure.
Supreme Court Justices O’Conner, Rehnquest, and Thomas wrote sensible disents from the courts decision.
An other wrong result is that the Person’s arrested by Federal Agents in California or other states ARE NOT ALLOWED TO TELL THE JURY THAT WHAT THEY DID WAS LEGAL UNDER THE STATE LAWS.
A bill has been introduced in Congress to require that such persons can tell the federal court jury they were obeying state laws.
Comment by: Paul Posted: November 21, 2009, 3:54 pm
Here is a suggestion to help California residents who were obeying California MMJ laws and arrested by federal agents.
Please write or e-mail senators Boxer and Feinstein, to introduce in the senate, and help pass the “Truth in Trials bill
Both senators have dot gov web sites to send email to.
Here is suggested wording, or write your own message.
One reasonable solution is to enable those facing federal marijuana-related charges to tell a federal jury if in fact they were following our state’s laws. A bill to accomplish this will soon be introduced in the U.S. House of Representatives by U.S. Representative Sam Farr (D/CA-17). Unfortunately, there isn’t yet a companion bill in the U.S. Senate. I am writing to ask you to introduce such legislation on behalf of your constituents.
U.S. Representative Farr’s bill, dubbed “Truth in Trials,” would guarantee California residents facing federal marijuana-related charges an affirmative defense if they can demonstrate their adherence to our state’s medical marijuana laws. A mere three pages in length, the bill is a short, simple solution to a serious problem.
I hope you will consider introducing “Truth in Trials” companion legislation in the U.S. Senate. For more information, you may contact Rochelle Dornatt, Chief of Staff to U.S. Representative Farr (D-CA), at (202) 225-2861 or Rochelle.Dornatt@mail.house.gov.
Thank you for your leadership on behalf of our state.
Sincerely
Comment by: Paul Posted: November 22, 2009, 10:56 pm
Rod Pacheco is facing a rqpidly increasing number of persons and states persons do not agree with his 2006 opinions as expressed above.
The voters of the state of Maine just approved November 4, 2009 a law about medical marijuana. It specifies over the counter SALE of medical marijuana by state registered dispensaries to medically qualified patients.
A short update on progress to implement is below.
November 22, 2009 09:18 EST
AUGUSTA, Maine (AP) — Maine’s newly appointed committee to implement
the medical marijuana law authorized by voters earlier this month will
hold its first meeting Dec. 1.
Gov. John Baldacci has also announced the names of the 14 committee
members.
They include a mix of state health, business regulation and law
enforcement officials, and representatives from medical and legal
fields. Four legislators also serve on the panel.
Maine’s the newly authorized law allows licensed dispensaries where
marijuana can be distributed to medical patients. Baldacci said the task
force would advise him on how to implement the law with safeguards to
protect public health and safety.
Comment by: Paul Posted: November 22, 2009, 11:14 pm
As of November 22, 2009, 13 state allow medical marijuana
I guess they do not agree with Rod Pacheco or Bonnie Dumanis
The list of the 13 states that allow medical marijuana include Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington.
The MMJ laws do vary widely between the 13 states at the present time.
Several other states have proposed laws being considered.
Comment by: Paul Posted: November 23, 2009, 12:36 am
I wonder whether Joe Pacheco DA Riverside County and Bonnie Dumanis DA of San Diego County or any of the many DA police authorities who use the police association training supplies that teach there is no such thing as “medical” marijuana and that it is a deadly drug with no medical value even know about the following information.
There is a “Medical Marijuana Research Program” authorized by the state legislature and conducted by the University of California at San Diego, and the published results of the studies they have produced.
Someone should tell them quickly. These authorities are missing up too many lives of innocent sick, injured, or dying MMJ patients AND their innocent friends and families on a deliberate and ongoing pattern of unjustified raids and arrests.
California Health and Safety Code 11362.9 established the UC Marijuana Research Program as authorized by SB420.
It runs six pages long. Here are two excerpts.
“11362.9. (a) (1) It is the intent of the Legislature that the state commission objective scientific research by the premier research institute of the world, the University of California, regarding the efficacy and safety of administering marijuana as part of medical treatment. If the Regents of the University of California, by appropriate resolution, accept this responsibility, the University of California shall create a program, to be known as the California Marijuana Research Program.
“(g) Studies conducted pursuant to this section shall include the greatest amount of new scientific research possible on the medical uses of, and medical hazards associated with, marijuana. The program shall consult with the Research Advisory Panel analogous agencies in other states, and appropriate federal agencies in an attempt to avoid duplicative research and the wasting of research dollars.
“(h) The program shall make every effort to recruit qualified patients and qualified physicians from throughout the state.
“(i) The marijuana studies shall employ state-of-the-art research methodologies.
“(j) The program shall ensure that all marijuana used in the studies is of the appropriate medical quality and shall be obtained from the National Institute on Drug Abuse or any other federal agency designated to supply marijuana for authorized research. If these federal agencies fail to provide a supply of adequate quality and quantity within six months of the effective date of this section, the Attorney General shall provide an adequate supply pursuant to Section 11478.
(k) The program may review, approve, or incorporate studies and research by independent groups presenting scientifically valid protocols for medical research, regardless of whether the areas of study are being researched by the committee.
“(l) (1) To enhance understanding of the efficacy and adverse effects of marijuana as a pharmacological agent, the program shall conduct focused controlled clinical trials on the usefulness of marijuana in patients diagnosed with AIDS or HIV, cancer, glaucoma, or seizures or muscle spasms associated with a chronic, debilitating condition. The program may add research on other serious illnesses, provided that resources are available and medical information justifies the research. The studies shall focus on comparisons of both the efficacy and safety of methods of administering the drug to patients, including inhalational, tinctural, and oral, evaluate possible uses of marijuana as a primary or adjunctive treatment, and develop further information on optimal dosage, timing, mode of administration, and variations in the effects of different cannabinoids and varieties of marijuana.
(l)”(2) The program shall examine the safety of marijuana in patients with various medical disorders, including marijuana’s interaction with other drugs, relative safety of inhalation versus oral forms, and the effects on mental function in medically ill persons.
(l)”(3) The program shall be limited to providing for objective scientific research to ascertain the efficacy and safety of marijuana as part of medical treatment, and should not be construed as encouraging or sanctioning the social or recreational use of marijuana.”
Comment by: Corie Posted: December 8, 2009, 1:58 am
i dont know if anyone could contact me back but i would love to ask a couple of questions to someone about the law itself
Comment by: Danknuggler Posted: December 12, 2009, 4:10 am
I dont like that last one there about not encouraging social or recreational use of cannabis.They should practically go hand in hand, med and rec use I mean.I was a rec user who realized the medical potential and probably may not have had I not already used cannabis fairly regularly.Danknuggler
Comment by: Daniel Billen Posted: December 17, 2009, 4:47 pm
If US citizens were allowed to just vote one day to legalize or not it would be a landslide to legalize. If for some reason you wanted to limit the voters to white business owners with a credit score over 700, perfect driving record and no criminal record, still a landslide to legalize. Marijuana prohibition was a campaign based on lies. There is no lethal dose of marijuana which makes it completely different than any other controlled substance or illegal drug. The simple fact that alcohol is legal and causes way more physical, physiological and social problems and is legal is ironic, wrong and should be fixed. Legal abuse of pharmaceuticals and alcohol is a way bigger problem. People get drunk and cause problems and alcohol is still legal because plenty of good folks just like a glass of wine or two. Some of us just like to relax with marijuana in the same way. The government should be enforcing the will of the people. Let go of your personal agenda and views and listen to who you work for and provides your paycheck.