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Medical cannabis delivery to continue in Berkeley

By Josh Parr Daily Planet Staff
Saturday September 02, 2000

A U.S. Supreme Court ruling barred the Oakland Cannabis Buyer’s Cooperative from distributing marijuana for medical use on Tuesday, voting 7-1 to endorse an emergency request from the Clinton Administration. The ruling, aimed narrowly at the Oakland clinic, however, does not overturn the legality Proposition 215, nor does it effectively end the distribution of marijuana to patients throughout the state, according to Dale Gierenger, California coordinator for NORMAL – the National Organization for Reform of Marijuana Laws.  

The central question of Proposition 215’s legality remains before a federal appeals court.  

“This law is being misconstrued by the media. It does not have anything to do with the legality of Proposition 215,” Gierenger says. One Berkeley activist at the Berkeley Patient Group, a Berkeley-based medical marijuana club, who declined to give her name, characterized the decision as “not really as big a deal as everyone thinks it is. Everything is actually OK.”  

The decision provoked more questions than answers. 

“We’re still cultivating an opinion” said E. Xeno Rasmusson, health consultant for the First Hemp Bank, a Berkeley-based privately held membership group of patients and care givers dedicated to safe, legal medical marijuana use. “But it seems to be part of the intricate dance between local, state, and federal decision making processes. ” 

While the decision does not necessarily shake the current status quo, it does set an uncomfortable legal precedent for those who support the medical use of marijuana. The case will eventually return to the Supreme Court, which will determine whether cannabis can be used medicinally. 

Many call it a test of representative democracy. At issue is whether the state-approved Compassionate Use Act, allowing marijuana to be distributed to patients with a prescription, will eclipse the federal Controlled Substance Act, which currently lists marijuana as an illegal substance.  

The Oakland Club is being used as a test case which will probably dictate policy for all similar cannabis clubs in California.  

The decisions will also have a long-term effect on cannabis clubs in Hawaii, Oregon, Washington, Alaska and Maine, all of which have approved the use of medical marijuana. 

Locally, however, the Supreme Court decision throws some confusion into how Berkeley police should pursue criminal cases involving medical marijuana. 

Several calls to the Berkeley Police Department for comment were not returned. 

Buzzy Linhart, a local musician who jammed with Jimi Hendrix in the late 60s, recently had his marijuana plants confiscated and seized by the Berkeley police, despite the fact that he was carrying a card showing his right to have medical marijuana. 

Todd Mikuriya, a doctor who often prescribes cannabis for medical use, remembers a “chronic paranoid schizophrenic street person” who “lit up” on the UC Berkeley campus. 

“He was set upon by the UC campus guard. When he showed the guard medical documentation, the cop did not attempt to legitimate its authenticity. The patient was cited and pulled into municipal court.” 

Highly charged situations like this, says Mikuriya, “come from a disgraceful, systematic lack of compliance to the law on the part of police.” 

Don Duncan, director of the Berkeley Patient’s Group agrees. “There is no leadership coming from the top. So the police don’t know how to proceed. We need to at least implement Proposition 215 on a local level here in Berkeley.” 

“You’d think” continues Duncan, “that Berkeley would support this law, and there are a few people, particularly Worthington, Maio, and Spring who do, but the rest of the city has refused to take any leadership on the issue.” 

Polly Armstrong, however, disagrees. 

“The city of Berkeley voted 85 percent in favor of Proposition 215. I’m one hundred percent in favor of medical marijuana. It should be legalized throughout the nation. We just didn’t want to become a magnet for other city’s medical needs. Berkeley doesn’t have to become the Amsterdam of the United States” says Armstrong. 

And despite claims that everything is all right, “Fear is high in the community. We don’t know if the police will use this case and begin to act upon their own volition concerning medical marijuana use,” says Mikuriya. 

The decision ads to the controversy of whose jurisdiction the medical marijuana issue falls under. California voters approved the use of marijuana as a medicine in 1996, passing Proposition 215. When it was challenged in the 9th U.S. Circuit of Appeals, the court ruled that “medical necessity” is a “legally cognizable defense” to a charge of drug distribution under the Substance Act. Federal lawyers have argued that this decision sets a dangerous precedent and provides a justification for illegal drug trafficking.  

Furthermore, the Berkeley City Council has a policy mandating police to make marijuana-related arrests a low-level priority. 

Such dictates put the Berkeley Police force squarely in the center of confusing legal conundrum. Will clubs similar to the OCBC, of which there are three in Berkeley, be forced to stop distributing marijuana for medicinal purposes as well? 

City Councilmember Kriss Worthington does not think so. 

“If Berkeley police have information that a person is using marijuana for medical purposes, they are instructed to not arrest that person.” 

“If the police use this decision as an excuse to penalize anyone for medical use of marijuana, we will ask that to stop,” continues Worthington. 

For now, what seems to be at stake is the ability for the Oakland club to remain open. 

Jeff Jones, executive director of the OCBC, believes that discussing the Supreme Court’s decision is giving it too much importance. 

“It’s just a small fork in the road in the two and one-half year battle to legalize medical marijuana. The timing just has to do with the election cycle. Can the government allow someone to be exempt from the federal laws? No. Think about it. The government is all about control, and that’s what this decision is about,” says Jeff Jones, executive director of the Oakland Cannabis Buyer’s Cooperative. 

Worthington, however, warns that if the timing is tied to November’s national elections, it’s a poor decision that will backfire on the presidential candidates.  

“If it’s being done for political purposes, it’s sort of dumb. The average voter in California voted for 215 overwhelmingly. It’s not just a Berkeley issue,” says Worthington. 

“Once people have had a taste of freedom,” adds Mikuriya, “they won’t want to turn back. There is such a high demand for the medicine by patients, that clubs have been having difficulty keeping up.” 

It will be the patients who suffer if the Supreme Court shuts down the clubs, says Rasmusson. 

“The War on Drugs has been a long-bungled attempt to stem so called illegal drug use. If this draconian impulse continues, and the clubs are shut down, the patients will just have to go back to illegal dealers, where there is no insurance that what they receive will be high quality. This is a drug war against the sick. Closing the clubs won’t do anything to stem actual drug use,” says Rasmusson. 

Says Duncan, “We will continue dispensing medicine to our patients until we are forced to stop.”