Administering Medical Marijuana Laws in San Diego

GLORIA PENNER (Host): I'm Gloria Penner and I'm joined by the editors at the roundtable these days in San Diego. Today, confusion over finding, getting and using medical marijuana in San Diego. Were threats of deep cuts in San Diego just threats now that the budget gap is closed? And can we expect the same out of Sacramento after all the talk about a government shutdown. The editors with me today are Elisa Joyce Barba, Western Bureau Chief for NPR News. And it's good to see you, Elisa.

ELISA JOYCE BARBA (Western Bureau Chief, NPR News):

Good morning, Gloria.

PENNER: Good morning. David Roland, Editor of San Diego City Beat. Welcome back, David.

DAVID ROLAND (Editor, San Diego City Beat): I'm thrilled to be here.

PENNER: And, by phone, Chris Reed, editorial board member of the San Diego Union-Tribune. And Chris is waiting at the boardroom at the San Diego Union-Tribune for the board meeting with the governor of California. So, Chris, I'm glad that you can spend some time with us before you see the governor.

CHRIS REED (Editorial Board, San Diego Union-Tribune): Glad to be here.

PENNER: And our call-in number is 1-888-895-5727, 895-KPBS. Well, thirteen years ago Californians voted to make the use of marijuana for medical reasons legal but San Diego County supervisors along with San Bernardino County supervisors objected on the grounds that the state's law violated the federal Drug Control Act. And now that the U.S. Supreme Court has refused to hear their appeals, is it legal to use medical marijuana in San Diego? So, Elisa, why is there still confusion over that question?

BARBA: Well, that was just a confusing lead up or – or line of things that have happened. You know, was it – we – the state made it legal and then we appealed to the Supreme Court. Basically, the Supreme Court came back and said that it is still illegal under federal law of course to use marijuana for medical or any kind of purposes but the states, right now, have the right to make their own laws in this. Is it legal to use? It's still a vague issue but I think all over California, especially in San Francisco and Los Angeles, it is being widely used and it is being regulated by the cities and the counties.

PENNER: But there was a sentencing just recently. Was it yesterday? David Roland? Of someone who was either acquiring it or using it.

ROLAND: Yes, a dispensary owner in Morro Bay, I believe, was sentenced to one year in prison by a federal judge who, from the reporting, sounds like he just said his hands were tied and that he – I guess he went on at length about how the pains that this guy went through to comply with state law, and said that he simply had to – I guess he was eligible for five years in prison but the judge said he had to sentence him to one year in federal prison because of federal sentencing guidelines. And the question is, was this just sort of a fluke case that just got in under the wire?

PENNER: What wire?

ROLAND: Well, between the wires separating the Bush administration from the Obama administration. If the DEA does not go after dispensaries and federal prosecutors do not pursue these cases, then this might have just sort of been the last one under the door.

BARBA: Attorney General Eric Holder has indicated that the federal government is not going to be raiding dispensaries and raiding places that give out or sell medical marijuana in states like California where it is legal. They've basically quietly indicated that they're going to let the states take care of this. So it, I think, as David is saying, I think that this case may have just gotten in under the wire.

PENNER: So, Chris Reed, it sounds as though using, acquiring, possessing marijuana can be legal in California but is still a federal offense.

REED: Well, it's wacky and essentially it's going to be, I think, a function of whether there's a Republican or a Democratic administration in power. And I think even some Democratic administrations, you know, might join the drug war fanaticism and go after things like this because it's a politically risky position for Obama to take in some ways. But the defense attorney for Charlie Lynch said as far as he knows there's only two or three more such prosecutions now unfolding in the entire nation. And so this may be among the very last, at least until 2013 or 2017. But there's such a – at a fundamental level, you know, this is just such a classic example how nuts the drug war is. We continue to lock up people and we continue to persecute people for using a substance that is infinitely less lethal than substances society embraces like alcohol and tobacco. And, meanwhile, in California, this has led to the folly of, you know, you've got 200,000 people or more registered as medical marijuana users, you've got this massive infrastructure set up around the state where people, you know, surreptitiously grow marijuana and then sell it to the clinics. And, meanwhile, you have people who lose their mind when Arnold suggests, well, why don't we legalize pot and tax it? I mean, could it be more obvious that we already have de facto legalization in California, so why shouldn't the state government try to tax it the way it taxes other drugs that it doesn't like?

PENNER: Okay, thank you, Chris. And I'm going to ask our listeners to chime in on this one. So here we have it, it's still a federal offense, although it may not be pursued vigorously by the Obama administration, to use or possess marijuana even for medical reasons. But in California, it's legal but there seems to be confusion here, and one of our San Diego City Council members, Donna Frye, is suggesting that we revive a marijuana task force to sort it all out. Do you think a task force is necessary as you see dispensaries that dispense medical marijuana start to go up in your neighborhood? Our number is 1-888-895-5727, 895-KPBS. And let's start with Will in Kensington. Will, you're on with the editors.

WILL (Caller, Kensington): Hi, Gloria. Thanks a lot for having this really important topic on, although it does pale in contrast with the budget problems we have that are…

PENNER: Well, we're going to talk about those in a few minutes.

WILL: Great. So on point, Chris, thanks for some excellent points that you made. Gloria, there's absolutely no confusion around the issue. We do need the task force immediately. As far as no confusion, the law's very clear and Attorney General Brown came out last August with an extremely concise statement detailing the fact that medical dispensing collectives may be legal under state law so long as they follow the guidelines established under Prop 215 and SB 420.

PENNER: So…

WILL: We have a hostile district attorney, Bonnie Dumanis. I, personally, have spoken with Steve Welter in the narcotics office and while they say that they strictly follow state law, they disingenuously renamed Operation Green Rx, which basically was set up to destroy the medical dispensing community in San Diego. They renamed it Endless Summer and set up a sting house and trapped quite a number of dispensing collectives.

PENNER: So let – let – excuse me.

WILL: Right now we have less than a dozen dispensing collectives, all operating under the radar in San Diego.

PENNER: Will. Will, I have a question for you and I need to interrupt you because there are a lot of people want to get in on this conversation. So are you saying that it really comes down to individual personalities who are figuring out how to use the law in order for them to get their political preference operative? You know, you mentioned Bonnie Dumanis.

WILL: Yes, and I think it's naive not to confront that because that absolutely is the case.

PENNER: Okay.

BARBA: May I…

WILL: And I…

PENNER: Alisa wants to say something. Go ahead.

BARBA: I think the ambiguity in the law, or the ambiguity between the federal and the state law, leaves some room for individual jurisdictions to carry out the state law the way they deem fit, and that's what's happened in San Diego. The difference in San Diego in terms of pot dispensaries versus San Francisco or L.A., you know, we all know that in L.A. in the last year, some 600 collectives have started, have opened up shop, because it's an atmosphere where that, you know, there's a whole legal issue about that. But San Diego has really stepped out firmly against these pot dispensaries with the Supreme Court decision on May eleventh that you mentioned. I think it's going to be a whole new situation in San Diego where they're going to be forced to do something about it.

PENNER: Well, the county objection was about issuing ID cards that show patients are allowed to possess and use marijuana. So when those cards are distributed, is that going to help clarify the situation, David?

ROLAND: Well, it'll certainly go hand in hand with, say, the City of San Diego's guidelines that they passed a number of years ago, which really has to do with the individual's ability to not get busted for possessing marijuana for medical uses. What a new – what a task force really needs to do is hit it from the other side, from the distribution side of the equation, and step up like some other cities have in California and make firmer guidelines on the distribution. But I want to make two other points. It's important to know that if Bonnie Dumanis is going to follow the Attorney General's guidelines then an important distinction is that, I believe, under the guidelines, for profit dispensaries are still not legal. So I think they have every right to go after dispensaries at the moment that are for-profit operations. But the big gorilla in the room here that we haven't mentioned is the fact that under federal law, marijuana is classified as a Schedule 1 drug, and that means it's not allowed for medicinal uses. And so all that has to happen – I mean, it's a big if, but the congress really just has to declassify, you know, take it out of the Schedule 1 category.

PENNER: So let me clarify that. That's an important point. You're right. Chris Reed, so does that mean that a doctor can lose his or her federal narcotics license if that doctor writes a prescription for medical marijuana?

REED: Well, I think it is entirely a discretionary angle for local law enforcement. The best article I've ever seen about this was in the New Yorker last summer and it points out that, you know, many of these people who are users are legitimate and they have medical problems but many of them just love going into these Venice Beach and, you know, dispensaries and loading up on the new exotic strains and all that. And this is inevitably going to outrage a large part of the community because it isn't all on the up and up; part of it is just recreational drug use. So there is so many built-in contradictions that this is going to be something that a Joe Arpaio type law enforcement or a gung-ho prosecutor – there'll always be ways for them to hassle these dispensaries. So it gets back to my original whining. Why not just legalize it and tax it and just end the ambiguities that will turn this into like a perpetual headline generating machine when a law enforcement type wants to make headlines on how tough he is.

PENNER: Okay, David.

ROLAND: I agree wholeheartedly with Chris, it may surprise a lot of people to know. But the one thing that worries me about total legalization is that you get perhaps tobacco companies or major corporations involved in the cultivation and sale of marijuana and then who knows what, you know, pesticides, what chemicals, are going into it and I think you just have – you open up a whole new can of worms. But Chris is right, we absolutely need to have an adult conversation about it.

PENNER: What about – I want to go back to the doctors, Elisa. Are doctors cooperating? Are they writing prescriptions or can you walk into a dispensary and…

BARBA: You can't walk – I mean, that's – part of the guidelines that Jerry Brown set out last year, was that it can't be – it has to be not-for-profit. Dispensaries have to keep detailed records of who their patients are and what their medical reasons are. And you cannot have on-the-spot sign-ups. You can't walk into a dispensary and say, you know, I have a vague pain in my hip and I want to get high.

PENNER: What do you have to have?

BARBA: You have to have a doctor's prescription literally for pot. Now, I – Frankly, I do not know the answer, whether a doctor who writes a prescription can be prosecuted on that but I do not believe that in California, in the thirteen years since we've had this law, that there have been any doctors successfully prosecuted for writing these.

PENNER: I would love to have a doctor call in and let us know what he or she believes is the law as far as he or she is concerned and whether a prescription can legally be written. And without a prescription, how can somebody get a drug? That's what I want to know, and I'm unclear on that.

BARBA: But the one thing that -- You know, the pot is being sold for medicinal and, you know, under the counter recreational purposes all across the state, as we know. And this issue about taxing it is very, very interesting. I mean, and, obviously, that segues into our city and our state budget talks but…

PENNER: Which we're going to get to in just a few minutes. But first we are going to take a break and we – when we come back, I want to speak to Rick in Mission Valley. This is the Editors Roundtable. I'm Gloria Penner.

[ break ]

PENNER: I'm Gloria Penner. This is the Editors Roundtable. I'm at the table today with Elisa Joyce Barba from NPR News, David Roland from San Diego City Beat, and, by phone, Chris Reed from the San Diego Union-Tribune. Let's hear from Rick now in Mission Valley. We are talking about medical marijuana, the confusion over what's legal and what isn't as dispensaries are starting to pop up throughout San Diego and in some cases neighborhoods are rebelling. So, Rick, let's hear what you have to say.

RICK (Caller, Mission Valley): Good morning. My issue's pretty much been covered to an extent in the fact that the whole – this whole lawsuit revolves around, you know, the conservative nature of a lot of the politicians pushing it. I think to have pushed a suit like this all the way to the Supreme Court seemed to me to be more like, you know, a political agenda, you know, or perhaps, you know, political cover. And for a lot of people that talk on one issue about, you know, respecting the wishes of the voters, they sure are very selective about when they want to do that. And I'll just take my answer off the air.

PENNER: Okay. Thank you very much, Rick. And it does seem to me that there's an inference here or an implication, I should say, that it's up to each community to decide its own guidelines for buying, possessing and using the drug. Do you sense that, Chris Reed?

REED: Well, I don't know. I think Jerry Brown's outline was relatively specific but I do think that there's so much wiggle room still that you can still see local authorities who decide to do things to hassle dispensaries in ways that Jerry Brown doesn't really address, like there's the old code violations. Now city governments, forever, have found ways to determine there are code violations or minor problems here and there with businesses they don't like. I mean, this is – normally happens with adult industries. So I don't think that there will ever be a neat resolution here so long as there is such a big chunk of the public that doesn't like the idea that marijuana is being distributed so readily. So this issue is not going to go away.

PENNER: All right, so that brings us right back to where we started: Donna Frye wanting to reestablish the marijuana task force. What would that accomplish, David?

ROLAND: Well, like I said before, I think it would – there needs to be more local guidelines on the – on the distribution side. You know, we did – we established, a number of years ago, how much marijuana a certain – an individual can possess, or if they're a caregiver, how much they can grow and how many people they can grow it for, that sort of thing. But I think we -- You know, if memory serves, we were a little lax on the distribution side and I think that's what we need to do.

PENNER: Alisa.

BARBA: Well, we have – we also haven't come up with the cards yet. I mean, they haven't been made, they haven't been issued, so that's going to protect the people who legally can go out and get it. You know what they found in Los Angeles is they, in 2007, they put a moratorium on dispensaries because they said they had 180 or something and they said we don't want anymore. In that moratorium, there was a escape clause or a clause where somebody could apply to open up a dispensary for hardship reasons and in the space of a year, since they put that moratorium down, 600 dispensaries have opened up in L.A. I mean, if that doesn't speak to a demand or at least a sense that there's money to be made out there, it's extraordinary. And you got to know that that kind of stuff is going to be happening in San Diego and we would only be smart to try to figure out good guidelines for our community, figure out where and how to do this.

PENNER: One more question for Elisa before I turn to David on this. Does this city council have the makeup, the heart, the political direction to go ahead and approve a medical marijuana task force?

BARBA: Oh, I think they do. I think it's a city council that has the wherewithal to do that. I think that they're going to run into problems dealing with the county, you know, as they continue to do this as they have in the past.

PENNER: All right. David, you wanted to say something.

ROLAND: Yeah, well, just on that point, I think I agree with Elisa that they do have the sort of ideological makeup to get this done, and not only that – and not only the fact that it's a Democratic-controlled city council, you know, the mayor of San Diego, a Republican, is, you know, is fairly liberal on social issues, so I think he would be on a board – on board with this, too. And I've completely lost my train of thought…

PENNER: That's okay.

ROLAND: …on what I wanted to say about the last thing.

PENNER: It'll – It will come back. It's an hour…

ROLAND: Oh, no, no, no, I know what it was.

PENNER: Oh.

ROLAND: I just happen to know that there are dis – there's sort of a split in the dispensary owners' community in San Diego. The ones that are nonprofit that are really trying to do the right thing for really ill patients are concerned with the Obama administration's more lax take on the issue. They are starting to get more concerned about unscrupulous dispensary owners that are in it for the profit.

PENNER: Okay. Let's take one more call on this. John in Hillcrest, and then, Chris, we'll get your final thoughts. John, you're on with the editors.

JOHN (Caller, Hillcrest): Hi. Good morning.

PENNER: Good morning.

JOHN: I don't know, maybe it's kind of a ludicrous statement but I feel like that there seems to be some sort of hypocritical kind of thing going on and I was thinking like, you know, in jest, if everybody that used marijuana recreational-wise or medical-wise just stepped out of their door on July first and put their hand in the air, I think the country might be, from east to west, might be quite amazed if people were honest and kind of…

PENNER: And come – come out of the closet.

JOHN: …come out and say that.

PENNER: Okay, well, our – Chris. Thank you, John and that's certainly not a ludicrous thought. I don't know whether we can get everybody to step out of their front door on July first to begin with. But, Chris, I'd like to get your final thoughts on this. Other than legalizing marijuana, do you feel that—and you've already said that you feel as though this thing is going to stay in confusion for a long time—what about the people who feel as though they want to get the ID, that they might be stigmatized by it but they really want to move ahead and get their marijuana.

REED: Well, the ones who have legitimate medical reasons have absolutely every right to feel victims here. I mean, this is now, as far as the Supreme Court is concerned—and that should mean everybody's concerned—settled law. But the fact is, is that the establishment, the federal government, has so much – the local government, local, state enforcement, have so much invested in the drug war that even after 40 years of its disastrous failures, its – its corruption of law enforcement, it promotes corruption by legalizing substances just like the prohibition, you saw massive corruption because of alcohol sales. It's an assault on people's rights. You see these property seizures where a mom loses her car because her son's caught with pot. It is enormously destructive, enormously costly and where is any sign of success after 40 years? So this is just a vestige of a much larger and much more disastrous and much more completely failed federal policy. And 40 years into it, there's still no end that we're – no sign that we're going to get to an end of it and have a much more rational approach.

PENNER: Okay, well, thank you very much. Thanks to all of the panel, and let us move on.