Quick Hits (page 3)
Police Retreat From Cannabis Case
By: Heidi Rowley (Visalia Times-Delta staff writer)
Jeff Nunes, 26, loves his plants.
He fingers the green, glossy leaves and looks lovingly at the 2-foot-tall plant as if it were his life's salvation.
Nunes believes it is. He says the 11 marijuana plants provide the cannabis that relieves him of extreme back pain.
"They said I was going to be in chronic pain all my life," he said.
A fall in 2001 left him bedridden for two years.
"As soon as I started using cannabis, I gave them back all the pills," Nunes said. "I started seeing how much more effective this is than other drugs."
Nunes and his marijuana plants are at the center of what appears to be a change in attitude among Tulare County law enforcement agencies -- the result of a ruling by a federal appeals court in December.
Visalia police raided Nunes' house in September and, Nunes says, removed 18 marijuana plants and tools he used to process them.
Nunes said he showed officers his two recommendation cards that identify him as a legitimate user of medical marijuana.
"When they realized I wasn't a drug dealer but a patient, their attitude changed," he said. "I tried to help them understand what was going on here and it was a legit operation."
Even then, he said, "They uprooted all my plants. They destroyed all of it. They took all my medicinal tools. I had enough medicine that would have lasted me until the next season."
Three months later, the 9th Circuit Court of Appeals in San Francisco said people who use marijuana on the advice of a doctor are exempt from federal laws that ban the substance if they grow their own or get it free.
It was the latest in a series of state and federal court rulings in the wake of a voter initiative -- Proposition 215, passed in 1996 -- which granted the right under state law to use marijuana for medicinal purposes. Federal drug authorities claimed federal law prevailed but lost that argument before the appeals court in December. The issue is now before the U.S. Supreme Court.
Earlier, the Tulare County District Attorney's Office decided not to file charges against Nunes, and last week the police department returned his tools, but not his marijuana plants, which it said were destroyed.
Visalia police Sgt. Ed Lynn, newly placed in charge of the department's narcotics squad, says he didn't participate in the Nunes raid. He says he's helping develop a department policy on handling medical marijuana cases.
Department spokesman Sgt. Shawn Delaney said in the past three months, there have been three other medical marijuana cases.
"In one case, 59 plants were seized. The district attorney has filed charges in this case, and it is pending in court," he said. "The other two cases, they appeared to be legitimate medical marijuana cases. They were checked out, and nothing was seized and no complaint was sent to the District Attorney's Office."
Deputy District Attorney Carol Turner said when the District Attorney's Office receives a marijuana case where the defendant claims to have a valid recommendation, she said it will also investigate whether the recommendation is valid.
Proposition 215 said physicians could recommend their patients use marijuana if they believe it is necessary.
Federal authorities, however, threatened to seek revocation of medical licenses in cases where doctors recommended marijuana use for their patients. A federal appeals court decision in October 2002 blocked attempts to punish doctors, ruling they violated both doctors' First Amendment rights and the doctor-patient relationship.
Subsequently, the California Medical Board informed doctors that they would not risk their licenses if they recommend marijuana in accordance with accepted standards of medical responsibility.
These standards include obtaining the history of a patient, performing an examination, developing a treatment plan, consultation, record keeping and a periodic review. Recommendations become invalid one year after the date they're issued or if the card-holder is arrested for a non-cannabis related crime.
Dr. Claudia Jensen, Nunes' doctor and a medical marijuana consultant, said she is "comforted" by the Medical Board's statement.
"They have the courage to do what's right, and that what's so beautiful," she said.
Nunes says the cannabis dulls the pain in his back but, unlike other medications, doesn't take it all away. He said with some medications he wouldn't feel any pain and then over exert himself, needing something stronger once the medication wore off.
"I still want to feel," he said. "[Cannabis] just dulls the pain so I can go on with work without anything holding me back. It's knowing you're still hurt and have limitations but knowing you're not going to injure yourself. It's knowing your limitations."
Nunes said he is impressed that Visalia police are recognizing Proposition 215, even if it took them eight years to do it.
"I want to help these officers as much as I can," he said. "I don't want to fight them; I want to help them."
Guidelines
Nunes and Lynn are working together to develop guidelines for this area on how many plants are acceptable for a medical marijuana patient and how officers can be better trained on how to separate a medical marijuana patient from a drug dealer.
I know they're doing their job," he continued. "I just want them to do their job correctly."
Nunes has some remaining issues with the raid on his house -- the 18 plants that weren't returned. He says they were worth about $10,000.
Delaney said when live plants are seized, officers photograph the plants, keep a sample and send the rest to a county site to be destroyed. He said the department doesn't have enough room to hold them.
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Growin' Our Own (page 3)
A Pack of Scurvy Dogs
By: Elmore Stone
God damn right. Medical marijuana patients, their caregivers and marijuana smokers in general need them pesky lawyers, and pronto, to rid us of those scurvy dogs - the Federales.
This is the deal and I'm going to stay the medical weed course because it is simpler that way. California and a handful of other states have medical marijuana laws on the books. All these state laws say, more or less, the same thing: marijuana is legal for use, possession and cultivation if the patient has a legitimate need. The same is true for caregivers.
The fly in the ointment is this: while it is legal in some states to smoke weed for medical reasons, the federales say no. It is not legal to smoke, possess or cultivate weed under any circumstances or any state law. Period. So sayeth the feds.
Ok Mr. Federale, I'm from Missouri. Show me your authority. In fact, show me the authority that provides you the express power to interfere in a wholly state issue.
Well, by god, Mr. Federale was really kind and pointed me to the United States Code (USC). Title 21 United States Code, Section 801 to be exact. Or in federale speak 21USC801. It was there. Not buried in some dark and mysterious corner but in plain view for all to see, the authority the federales are using. Here it is for you:
"(6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic."
You are by now probably asking so what? It does indeed look as if the federales can and do have legal authority to mind the states business, so to speak.
But all is not as it appears. Not by a long shot. The operative phrase of the above quote is: "Federal control of the intrastate incidents." That tells me that maybe, just maybe, our federale congress know not of what they speak. It was congress, after all, that wrote this piece of used toilet paper. The federale agents, read DEA, are using this particular shit ticket to no end, against us.
So I decided to do a little more digging. The first place I looked was the supreme law of the land - the Constitution. See if it sheds some light on this dark subject. Well, lo and behold, it sure as hell does. Contained in Article I, Section 8, powers reserved to the congress, is this little gem:
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes[.]"
Whoa Nelly. What have we here? I'll tell you what we have here. We have that congress can: (a) regulate commerce with foreign countries, (b) regulate commerce between the several states, that is interstate commerce and (c) with the various Indian tribes.
Now, did you see ... anyplace ... where congress has the Constitutional power to regulate commerce that occurs within a single state? To put it another way, where congress has the Constitutional power to regulate intrastate commerce? No? Well guess what, neither did I.
The congress, the DEA and any other federale is in violation of the U.S. Constitution. Put that in your pipe and smoke it. Now, the question becomes - did the founders really mean what they wrote? This is what Alexander Hamilton, writing Federalist Paper 33 says about it:
"It will not, I presume, have escaped observation that it expressly confines this supremacy to laws made pursuant to the Constitution[.]"
To me, that means if a power is not contained within the Constitution then congress has no power, no authority to enact a law where there is no express authority for them to do so. Say to regulate intrastate commerce, perhaps.
Quoting James Madison in Federalist Paper 45 says yes, the founders meant exactly that and no more.
"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."
Finally in Federalist Paper 84, also written by Hamilton, is this:
"I go further and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution but would even be dangerous. They would contain various exceptions to powers which are not granted; and, on this very account, would afford a colorable pretext to claim more than were granted."
See that? The "few and defined" phrase. How about the "expressly confines this supremacy to laws made pursuant to the Constitution" phrase. And the "powers which are not granted" phrase. Now remember the commerce clause of the Constitution? "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes[.]" Gee, I just don't see anything about intrastate commerce in there. The same, though worded differently, is contained in Hamilton's papers. No money -- no honey.
Then just how in the hell do the federales get away with this crap? The answer is courtesy of the U.S. Supreme Court. Ain't that just lovely? The folks that are supposed to ensure the Constitution is adhered to are not doing their job. Indeed, they have decided to let the fox guard the chicken coop.
The pivotal case in this whole sordid affair is titled Wickard v. Filburn. The citation is 317 U.S. 111 (1942) for you legal beagles and involves a wheat farmer, Filburn, and the Secretary of Agriculture, Wickard.
What happened was this, ol' Filburn decided to grow more wheat than was allowed under the federale rules. Filburn used the wheat to feed his cattle, poultry, grind some of the wheat into flour and save the rest for seeding. Enter the evil federales. The federales decided that ol Filburn was growing too much wheat and should therefore be penalized. Just because he was using the wheat for himself was completely lost on the stinking feds. Filburn sued. The Supreme Court, in their infinite stupidity, stated this:
"The question would merit little consideration since our decision in United States v. Darby, sustaining the federal power to regulate production of goods for commerce except for the fact that this Act extends federal regulation to production not intended in any part for commerce but wholly for consumption on the farm. The Act includes a definition of 'market' and its derivatives so that as related to wheat in addition to its conventional meaning it also means to dispose of 'by feeding (in any [317 U.S. 111, 119] form) to poultry or livestock which, or the products of which, are sold, bartered, or exchanged, or to be so disposed of.' Hence, marketing quotas not only embrace all that may be sold without penalty but also what may be consumed on the premises."
I added the bold in that quote by the way.
The Supreme Court, in 1942, amended the Constitution. They ain't got the Constitutional authority to do that. And here we are today. No change. All of the fairly recent court decisions, notably by the Ninth Circuit Court of Appeals in California, upholding the right of medical marijuana patients to possess, use and cultivate their medicine and not be hassled by the federales have not had the balls to take on the Wikard decision. Of course no attorney asked them to do so.
The fucking court provided an unlawful, to be sure an unconstitutional, power to congress. The court doesn't have the juice to amend the Constitution. Congress doesn't have the juice to enact laws where they have no power to do so. Each DEA bust where there is no interstate commerce involvement is blatantly illegal. The only remaining question is how much longer are we going to put up with this shit?
Hey lawyers, y'all have spent years in school, hopefully you actually learned something from all that education. Now is the time to put it to good use. Cut these federales off at the ankles. Wikard has got to be overturned. There is no two ways about that. Possibly U.S. v. Darby as well. I haven't read that one but Wikard cites it. The argument is exceeding simple, where there is no Constitutional power granted, the government has no authority. Where there is no authority, there is no jurisdiction. Where there is no jurisdiction the government is impotent to act. I would certainly hope that lawyers could come up with additional arguments but, what the hell, at least that is a start.
We already know congress will not doing anything to change the law. They have had more than ample time to do so and have done nothing. Simply put, congress is a bunch of scurvy dogs. They could give a fuck less about anybody, unless you've got a ton of money that is, but themselves.
How many more people are going to be jailed? How many more people will loose their property? How many more people will die? All on account of an illegal -- an unconstitutional -- law.
Attorneys, you've got your mission, now act on it.
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Pipeline (page 3)
City of Oakland Withholds Permits from Cannabis Clubs
By: Jim Herron Zamora (Chronicle Staff Writer)
Oakland's once-bustling downtown enclave of medical marijuana clubs is about to disappear -- less than a year after it earned its nickname -- after city officials refused last week to issue permits to several popular establishments.
"All that you see around us will be gone," Jeff Jones, executive director of Oakland Cannabis Buyers Cooperative, said Monday. "They're shutting almost everyone down, and I don't think that's good for the patients. I'm glad the city is involved in regulation, but it's also driving away businesses that could be paying revenue" to the city.
Most of about a dozen cannabis enterprises in the city, including four in the 1700 block of Telegraph Avenue, are being forced to close or stay open as cafes -- without selling marijuana -- or risk the wrath of Oakland police. The closures began June 1 when a new ordinance took effect.
In February, the Oakland City Council adopted an ordinance allowing the city to regulate marijuana clubs and limited their number to four. The ordinance requires that no marijuana dispensary be located within 1,000 feet of another.
Club operators, customers and advocates of medical cannabis had hoped the city would allow more of Oaksterdam's clubs to remain open.
"It's been very confusing," said Richard Lee, who owned two cannabis clubs in downtown Oakland -- the SR71 Cafe on 17th Street and the Bulldog Coffee Shop at 1739 Broadway.
Lee said city officials told him on May 29 that he would receive a permit to keep selling marijuana at the Bulldog but not at SR71. Then last week, he found out he could only sell medical marijuana at the smaller cafe, SR71.
"I've operated the Bulldog for five years, and I think we've provided a good service for people,'' Lee said.
Oaksterdam was born, medical marijuana advocates say, as a result of government's mixed response to voter approval of Proposition 215 in 1996. While local governments have supported medical marijuana in concept, the advocates say, they have done little to regulate how patients get their medication -- which is still illegal under federal law.
After the measure was passed, Jones opened the cooperative in the 1700 block of Broadway to provide patients with medicinal marijuana. A federal injunction forced him to shut in 1998. Since then, his group has aided patients by issuing city-sanctioned ID cards and making referrals to pot clubs that filled the void.
By last fall, 10 to 12 clubs were operating in a stretch of downtown from 14th Street to Grand Avenue.
City officials grew concerned that the northern edge of downtown, which is a redevelopment area where major projects are planned, was becoming dominated by marijuana clubs. The council also agreed the city needed to regulate the medicinal sale of marijuana.
Some clubs, such as the Bulldog and Lemon Drop cafes, are visible from the street and cater to marijuana users and non-patients. Others, like the Compassionate Healing Center, are low-profile and unknown to anyone but their clients.
The three surviving clubs will have to pay the city about $20,000 in fees and permit costs to remain open. They are:
-- Compassionate Healing Center at 578 West Grand Ave.
-- SR71 Cafe on 17th Street near Franklin Street.
-- California Access Relief Exchange (CARE) at 1900 Telegraph Ave.
The city is authorized to issue four permits, although city officials were not available Monday to discuss whether they would issue the final permit.
"I'm looking to revisit this,'' said Councilwoman Nancy Nadel, a supporter of the ordinance whose district includes Oaksterdam. "I'd like to see if we can issue permits to allow more clubs to stay open."
Medical marijuana advocates said that by forcing Oaksterdam to split up, the city is destroying a unique culture that brought visitors and money to benefit Oakland's often derided downtown.
"There are a half dozen clubs within a short walk of the 19th Street BART (Station), and that's great for patients,'' said Dale Gieringer, California coordinator for the National Organization for the Reform of Marijuana Laws. "The city has a great thing and doesn't appreciate it. They are forcing thriving businesses to close."
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