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A San Diego Medical Marijuana Co-op Stays Open, For Now.
July 25, 2012 1 p.m.
The dispensary confrontation is just part of the ongoing battle between federal authorities and state medical marijuana collectives that began last year. We'll hear an update on where a patient's right to medical marijuana stands now in San Diego and about efforts to get voters involved in the issue.
KPBS Reporter Erik Anderson
Eugene Long, an employment attorney with the Brown Law Group and and former U.S. Attorney
Jessica McElfresh counsel, Citizens for Patients Rights
CAVANAUGH: This is KPBS Midday Edition. I'm Maureen Cavanaugh. It's Wednesday, July 25th. Our top story on Midday Edition regards efforts to figure out the mixed up legal status of medical marijuana in California. Supporters of a collective in El Cajon plan a protest today in downtown San Diego. Eric Anderson is at the federal building downtown. Welcome.
ANDERSON: Thank you.
CAVANAUGH: What is this protest about?
ANDERSON: Well, I think what they're trying to do here at this rally in downtown San Diego is basically send a message to the U.S. attorney, Laura Duffey, that there is a place for medical marijuana in the State of California, in San Diego County specifically, and that there should be some sort of mechanism for allowing that marijuana to get to the patients who use it. The clinic you were talking about earlier is the mother earth alternative cooperative out in El Cajon. This hour the locks on that building are being changed, an eviction process is being completed, and essentially the mother earth collective with 70,000 customers is going to be out of business because a federal court yesterday said that, no, they're not going to issue an injunction to stop the eviction while they appeal whether or not the business model that they have set up here meets federal standards. And that's the conflict here. The standard between what the state says is okay and what the federal government says is okay.
CAVANAUGH: Is this a well-attended protest?
ANDERSON: The protest is due to start right around this hour. There are a couple dozen people here. I'm not sure how many more will come.
CAVANAUGH: What has the U.S. attorney's office said about in latest eviction?
ANDERSON: Well, the U.S. attorney has been as they have been in the past very quiet. We tried to get comment on the injunction on Monday and never got a phone call back from the attorney's office. I think their position is one that has been stated before, which is that the possession of a seed of marijuana, possession of marijuana with the intent to distribute is a federal crime, and they're moving forward on that basis. And I think that's where the conflict is. Advocates are trying to find a way for the medicine to get to the patients, and they can't seem to come together on what that mechanism is.
CAVANAUGH: Eugene Long is a former U.S. attorney now with the brown law group in San Diego. And Jessica McElfresh is council for citizens for patients' rights. We contacted the U.S. attorney's office in San Diego to join this discussion but we did not get a response from that office. Why is this federal crackdown underway? The use of medical marijuana was approved by the California voters, but theus attorney is closing co-ops. Why?
LONG: The problem is that despite the fact that it was approved by California, it's still illegal under federal law. The more recent cases have taken an expansive view of the federal government's power to regulate marijuana even in this circumstance under the power to regulate commerce.
MAUREEN CAVANAUGH: And it sounds as if this conflict was inherent from the very beginning of the approval of the proposition, the initiative to legalized medical marijuana in California. So why is this happening now? It's been 15 years.
LONG: I think the reason why we're seeing this happen more often is because there's been a greater proliferation of medical marijuana co-ops, dispensaries.
CAVANAUGH: So this has gotten to the point where the federal government has taken notice and said this has to stop?
CAVANAUGH: Why in the midst of this federal crackdown is citizens for patients' rights conducting a signature gathering campaign in effort to bring co-ops and collectives to cities around San Diego County?
MCELFRESH: Well, the reality is that this is our time if we're going to move forward. Our best hopes is that the federal crackdown will end, that the feds will see the foolishness of this policy, that it is not a good use of resources. And they're only endangering public safety and forcing people to go underground. As far as why we're moving forward, we are trying to give cities what they have consistently told us that they want, which is regulations. And to spell it out how this should be done. And that's what we're intending to do.
CAVANAUGH: What does the citizens for patients' rights initiative say?
MCELFRESH: Well, to give you a summary, it sets forth acceptable locations and distances within the cities where we're running these initiatives, which include Del Mar, Lemon Grove, Solana beach, Encinitas and La Mesa. It sets forth strict operational standards and a regulatory scheme for the cities to implement.
CAVANAUGH: Now, there is this problem with terminology. We call these medical marijuana facilities sometimes co-ops, collectives, dispensaries. There's some conflict as to whether or not one or the other might be more legal.
MCELFRESH: I can clarify that. Of the truth is that any dispensary that's legal under California, whether I call it a clinic, facility, dispensary, they all have to operate as collectives or cooperatives to comply with California's medical marijuana laws. So any lawful dispensary has to be a collective or cooperative.
CAVANAUGH: Do you go that the names don't necessarily matter?
LONG: Yes, I agree.
CAVANAUGH: Okay. So the Del Mar City Council just approved putting the measure on the ballot because your signature gathering campaign had so -- the signature gathering campaign had such an excess of signatures, apparently this is very popular among the people who signed this petition in Del Mar. But the Del Mar city attorney said it was misleading, especially in terms of the amount of sales tax the city could collect from these dispensaries.
MCELFRESH: To focus specifically on the sales tax issue, we've contacted the board of equalization. They said that is incorrect, it would not -- they would not stop collecting all sales tax for Del Mar. They would continue to collect the standard sales taxes for Del Mar. As for the extra revenue that we're trying to give the city of Del Mar toward its revenue fund if this initiative passes, the city would be responsible for collecting a percentage of that. But of course they would be more than free to use those funds to collect that money and bring it in. But in no way is Del Mar's regular sales tax collection in jeopardy at all.
CAVANAUGH: In addition to the city attorney in Del Mar talking against this particular initiative, a representative of the U.S. attorney's office also spoke during the meeting of the City Council. And I'm wondering, that sounds like a rather unusual move by the U.S. attorney, warning the city, look, we are cracking down on these facilities and basically saying there's no point. Is that an unusual move by the attorney's office?
LONG: It's unusual, but this is a unique situation. There are inherent conflicts between the federal law and the California medical marijuana laws. This conflict was -- the point at which we are at could be foreseen as soon as the law was in place. At the time the medical marijuana laws were put into place, it was still illegal and is still illegal now under federal law. And the expectation that the federal government could turn a blind eye to it was a bit naive. As there have been a proliferation of co-ops, it's become more obvious to the federal government.
CAVANAUGH: Now, there is no designation of medical marijuana under federal law, is there and
LONG: That's correct. Under federal law, marijuana is still a controlled substance and has been determined to be not appropriate for medical use under any circumstances. There was a recent case where patients in a number of communities in Orange County brought suit under the Americans with disabilities act, challenging the crackdown on dispensaries in that county as being a violation of their rights under the ADA. And the federal courts at that time said there was no protection whatsoever for medical marijuana use under the ADA.
CAVANAUGH: One of the things that is interesting about this conflict between the federal government and the state government is where employees in the State of California, if they have been prescribed medical marijuana to be able to use it by their doctors, they can still be subject to firing if they're found to have marijuana in their system during a blood test; is that right?
LONG: That's correct. But that's more of a problem with the fact that the compassionate use act as it was written did not address employment law whatsoever. Courts have ruled in the recent casings as early as I believe 2008 that under the law it would be acceptable for a doctor to prescribe it to you, but the law does not specifically exempt medical marijuana use from being a lawful ground for termination. Nor did they amend the fair employment and housing act to address that either. So that issue is much more of something that Californians, that the California legislature can address on their own without trying to deal with a conflict between federal power versus state power.
CAVANAUGH: There is an effort by state assemblyman Tom Ammiano to create a state board to make strict regulations for medical marijuana, for dispensaries, etc. Would that kind of a thing solve the legal tug of war between state and federal agencies?
LONG: No, it wouldn't.
CAVANAUGH: Oh, okay.
[ LAUGHTER ]
CAVANAUGH: All right, we solved that!
MCELFRESH: I have to agree.
LONG: The problem is we're running into the fact that it is legal in some sense under state law but is completely illegal under federal law. And the basic problem is there is nothing that can be done at the state level that is going to address the fact that it's illegal under federal law. We are however reaching a tipping point because more and more states have some sort of medical marijuana law under the books. I think we're definitely reaching a tipping point at which a sufficient number of states are going to allow it in in some form or another that we as a country are going to have the discussion as to are we going to allow this and how are we going to deal with this conflict?
CAVANAUGH: Yesterday the LA City Council voted to ban dispensaries. I know that you've been having a certain amount of success in the campaign to gather signatures to get these initiatives on the ballot here in the county of San Diego. But doesn't that sort of take you're the wind out of your sails? Isn't the thrust of what's happening here that these dispensaries and the collectives are going away?
MCELFRESH: As more states have medical marijuana, the District of Columbia has it, we are reaching a tipping point, we can't reach that point unless we keep pushing forward. Yes, the city of Los Angeles has made a grievous error in my opinion. However, the patients are planning to fight back. Nothing would stop them from running a referendum on this, which we ran in San Diego and were successful in turning over the ordinance. The people of LA could run their own ballot initiative. You mentioned the Ammiano bill. That was not able to move forward this year, unfortunately. But we intend to come back and bring it forward again. We have to continue to push these laws forward, to bring our stories to the public, and no, we may be punched in the mouth for the moment, but we are not going away.
CAVANAUGH: Let me ask you if you could briefly, what are the legal arguments that would allow the State of California to legalize medical marijuana for use in this state?
LONG: Well, do you mean in terms of comparison to federal power?
CAVANAUGH: Yeah, is there any way legally that the State of California could say I know that it is illegal federally, but here for this particular use, under these circumstances, it is legal?
LONG: The problem is that ultimately speaking, federal law is the supreme law in the land. The challenge the states could mount is that this is an area that the federal government would not have the power under the constitution to regulate.
MCELFRESH: That's one argument that has been tried. However I think Gonzalez V. Raich put to rest the argument that the government can use its commerce powers to regulate marijuana. However, the federal controlled substance act does include a provision that permits states to also regulate marijuana and other controlled substances in their own way and decide how to allocate their resources. That is essentially what the compassionate use law and the medical marijuana program law have done. They've permitted the state to say we're not going to extend our resources under state law to go after people who are using it for medical purposes. And also as far as the federal law, yes, the law has not changed, unfortunately. However, President Obama did initially indicate that he was not going to use his resources to go after people who were in compliance with state law. And I do believe that played a role in the expansion of the number of medical marijuana collectives that we saw not only here but also in Colorado and other states. We have had the rules changed on us and we're trying to figure out why and catch up.
CAVANAUGH: For someone who needs marijuana medically, what options are available to them now?
MCELFRESH: Well, I know many people would say that they could grow it themselves. Upon however, cultivating medical marijuana is an extremely difficult endeavor and beyond the reach of people who need it most. They are often too ill or don't have the resources to do so. Unfortunately, many of them are going to be forced back on the black market and will not have the access to the quality of medicine that they require.
CAVANAUGH: Okay. Thank you both.
MCELFRESH: Thank you, Maureen.
LONG: Thank you.