Drug Law

San Diego D.A. Gets Facts Wrong on Medical Marijuana

| by ASA

Steve Kubby, Executive Director of the American Medical Marijuana Association, sent the following letter to San Diego District Attorney Bonnie M. Dumanis:

1017 Portola Drive, San Francisco, CA 94127

September 12, 2009

Bonnie M. Dumanis
San Diego District Attorney
330 W. Broadway
San Diego, CA 92101

Dear District Attorney Bonnie M. Dumanis,

Everyone is entitled to their own opinion about medical marijuana. However they are not entitled to their own facts. As someone who played a key role in the Prop. 215 campaign, I must correct several false and misleading statements issued by you recently.

Ms. Dumanis, we want to look up to our District Attorneys and believe what they tell us. When opinions are being passed off as facts on an official DA website, such actions are viewed as a direct threat to public health and safety by the patients, physicians, nurses, lawyers, and scientists who support The American Medical Marijuana Association (AMMA).

For example, you insist on misquoting Prop. 215, with respect to Caregivers. What the Compassionate Use Act actually says is health “OR” safety, not “AND” safety yet you continue to create a strawman argument, based upon this misrepresentation. Furthermore, you use this phony standard to raid and arrest collective members which is completely unreleated.

Another example you have repeatedly asserted, “The pro-medicinal argument is reserved for SERIOUSLY ILL patients.” Then, you criticized those who use it for anything less serious than Cancer or AIDS, telling the public, “This isn’t what the voters voted for.”

Actually, that is exactly what the voters were told would happen if they voted “YES” for Prop. 215. If you refer to the official Analysis of Proposition 215 by the Legislative Analyst, the voters were told, “No prescriptions or other record-keeping is required by the measure.”

In addition, the voters were reminded by the Legislative Analyst that this initiative also covered, “any other illness for which marijuana provides relief.”

(Source: http://vote96.sos.ca.gov/BP/215analysis.htm)

In the ballot Argument Against Prop. 215, James P. Fox, President, California District Attorneys Association solemnly warned voters that if Prop. 215 passed, it would “legalize marijuana”:

“This initiative allows unlimited quantities of marijuana to be grown anywhere … in backyards or near schoolyards without any regulation or restrictions. This is not responsible medicine. It is marijuana legalization.”

(Source: http://vote96.sos.ca.gov/BP/215noarg.htm)

The fact is that when the People of California wrote and passed Proposition 215, the Compassionate Use Act, it was intended to fully exempt patients from criminal prosecution.

Attorney General Dan Lungren even said so when he wrote his official Title and Summary to Prop. 215 and told the voters in their 1996 Voter’s Handbook:

“Exempts patients and defined caregivers who possess or cultivate marijuana for medical treatment recommended by a physician from criminal laws which otherwise prohibit possession or cultivation of marijuana.”

(Source: http://vote96.sos.ca.gov/BP/215.htm)

Nowhere in the official Title and Summary or in the text of the Compassionate Use Act does it say anything about an affirmative defense or any limits or restrictions.

It was Lungren who fraudulently changed his official Attorney General’s interpretation after the election from, ”Exempts patients and defined caregivers” to his personal, “narrow interpretation” which told law enforcement they could go ahead and arrest anyone who had “too much for personal use.”

Lungren also immediately called a statewide “All-Zones Meeting” to discuss and coordinate how police could gut Proposition 215 and ignore the new law. The gist of his “narrow interpretation” was relayed to law enforcement officers throughout California by their professional associations and through official channels.

Lungren also met with and coordinated his attack on the CUA with federal officials. Finally, in the action plan he released on December 30, 1996, ONDCP “Drug Czar” Barry McCaffrey made Lungren’s policy explicit:

“State and local law enforcement officials will be encouraged to continue to execute state law to the fullest extent by having officers continue to make arrests and seizures under state law, leaving defendants to raise the medical-use provisions of the proposition only as a defense to state prosecution.”

The affirmative defense strategy allowed opponents of medical marijuana to achieve what they couldn’t on election day — a fraudulent interpretation that allowed LEOs to continue arresting and charging people as if Proposition 215 had never passed.

Regretably you have repeatedly and falsely stated you opinion that:“Federal law supersedes state law.” However, the fact is that the court has ruled against arguments that police are generally charged with enforcing “the law of the land,” including federal laws. Here is what the 4th District Court of Appeals had to say about this matter:

We appreciate these considerations and understand police officers at all levels of government have an interest in the interdiction of illegal drugs,” Bedsworth wrote. “But it must be remembered it is not the job of the local police to enforce the federal drug laws as such.”

By complying with the court order to return Kha’s pot, Bedsworth added, Garden Grove officers “will actually be facilitating a primary principle of federalism, which is to allow the states to innovate in areas bearing on the health and well-being of their citizens.”

“The upshot of Raich is that the federal government and its agencies have the authority to enforce the federal drug laws, even in a state like California that has sanctioned the use of marijuana for medicinal purposes. However, we do not read Raich as extending beyond this particular point, into the realm of preemption. The Raich court merely examined the validity of the CSA under the Commerce Clause; it did not go further and examine the relationship between the CSA and the CUA…Raich “neither declared (the CUA) invalid on preemption or any other grounds nor gave any indication that California officials must assist in the enforcement of the CSA.”].) Consequently, the high court’s decision did not sound the death knell of the CUA in state court proceedings. (Cf. People v. Wright, supra, 40 Cal.4th at p. 89, fn. 5 [noting the parties in that case both agreed Raich is not implicated in deciding “the applicability of the CUA to state criminal charges”].)9

The fact is, “the structure and limitations of federalism . . . allow the States ‘“great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.”’ [Citation.]” (Gonzales v. Oregon)

This decision was challenged by varous law enforcement organizations who brought the matter before the California Supreme Court which refused to hear the case. LEO’s then appealed to the US Supreme Court, which also refused to hear the case, upholding this California decision as the law of the land.

Statements that federal law supercedes state law, also places you, and every other state official who uses this bogus argument to attempt to nullify the will of the People of California in direct conflict with our California Constitution, the highest law in our state.

According to the California Constitution such actions are clearly prohibited. Under Article 3, Section 3.5 (c):

“An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power: “To declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations.”

(Source: http://www.leginfo.ca.gov/.const/.article_3)

The US Supreme Court has had three opportunities to declare the Compassionate Use Act unconstitutional yet they have not only refused to do so their legal decisions have clearly upheld that the People of California had every right to pass and enforce the CUA as a state law.

One more fact that everyone must understand about the Compassionate Use Act: The California Constitution also requires that any changes to a voter initiative must be submitted to the voters of the state and approved by them. Thus, no Board of Supervisors, nor Sheriff, nor District Attorney, nor San Diego District Attorney, nor Legislature, nor Attorney General, nor Governor has the legal right to change the state’s medical marijuana law. Only the voters can change or modify this law.

Sick, disabled and dying patients throughout San Diego county are still being raided by SWAT teams, arrested, jailed, humiliated, treated like criminals, bankrupted, children abducted by CPS and made even sicker, because of those who are still deliberately opposing this law thirteen years after the People of California voted to exempt patients and caregivers from criminal penalties and sanctions.

It is time to separate opinion from fact and uphold the Compassionate Use Act as it was written and passed by the People of California.

District Attorney Dumanis, the lives of sick, disabled and dying patients are in the hands of dedicated and otherwise well-intentioned public officials like yourself. Those who read your words on an official DA website need to hear directly from you that the information you gave them was wrong and is actually part of an carefully crafted plan hatched by Attorney General Dan Lungren, under color of law, to subvert a law that prosecutors don’t like.

We hope you will do the right thing and publish a retraction to your unfortunate and harmful statements.

Let freedom grow,

Steve Kubby
AMMA Executive Director