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February 14, 2010 -- Daily News (WA)

Court Decision Has Medical Marijuana Users Wary Of Compassionate Legislation

By Rob Carson, The (Tacoma) News Tribune

Return to Drug War News: Don't Miss Archive

Just as medical marijuana commerce was beginning to flourish openly in Tacoma, a Washington State Supreme Court decision sent many patients running for cover.

"People are scared," said Mike Allison, a principal behind North End Club 420, one of three new Tacoma exchanges for medical marijuana patients. "And that's too bad because they're sick and they need this medicine."

The stack of the marijuana-growing equipment at Club 420 headquarters appears to bear out his impression.

Lights, fans and carbon-exhaust filters are piled in cardboard boxes on the carpet in a rear office -- all of it, club members say, donated or sold at low cost to the exchange by patients worried about getting busted.

"The whole idea that police can get the faintest whiff of cannabis coming out of your house and come in with guns drawn has freaked people out," Allison said. "People are calling us, saying, 'Come and get this stuff out of here. I don't want to take the risk.' "

In the Washington v. Fry court decision, released Jan. 21, the Supreme Court knocked at least a couple of bricks out of the legal foundation relied on by those who use marijuana as medicine.

Standing on your porch and waving a note from your doctor doesn't necessarily mean the cops can't search your home and arrest you, the court said. And if your medical authorization is flawed in some way, the court continued, you might not be able to use the medical marijuana law as a defense at trial.

The court's interpretation of the law only makes sense, say those in law enforcement who must distinguish legitimate medical marijuana patients from dealers and recreational users.

Without a search, how can officers tell whether a person is growing more than the maximum allowed by law? If a physician's authorization for medical use doesn't meet the standards of the law, why should it constitute a defense in front of a jury?

Pierce County Prosecuting Attorney Mark Lindquist said he doesn't think the impact of the Fry case will be as great as medical marijuana users fear.

"Our philosophy remains unchanged," Lindquist said. "We're not interested in prosecuting legitimate medical marijuana users. But we are going to prosecute bogus medical marijuana users."

"We're going to continue to look at it on a case-by-case basis," he said. "We're not in the business of prosecuting legitimate medical marijuana users, but we don't want to see the medical marijuana statute abused to cover drug dealers."

Clouded History

Washington's medical marijuana law, which voters approved in a 1998 initiative, was never clear to begin with.

The law made it OK for people with certain "debilitating or terminal illnesses" to have a limited amount of marijuana for medical use, but left it unclear how they were supposed to get it. Buying and selling marijuana stayed illegal.

Authorized patients are allowed to tend their own marijuana plants, but there is no legal source for seeds or seedlings.

Also, the state law conflicts with federal law. The federal government doesn't recognize the medical use of marijuana.

Attorney General Eric Holder announced last year that the Justice Department will not raid medical marijuana exchanges that are legal under state law. But all marijuana possession remains illegal under federal law.

As a result, local law enforcement agencies and medical marijuana users are engaged in a careful dance, with users grasping at admittedly flimsy interpretations of the state law to justify commerce in the drug and, in most jurisdictions, cops and prosecutors pretending not to notice.

"The reality is, we have bigger problems in Pierce County that we're focusing on," Lindquist said. "Marijuana is extremely low on our radar screen."

In 2009, Lindquist said, his office filed charges in about 1,600 drug cases, most involving methamphetamine. Only 79 were marijuana-grow operations, he said.

'Patient Exchanges'

Public evidence of Tacoma's clandestine medical marijuana trade has been growing steadily. In the past two months, three marijuana exchanges opened outlets in various parts of the city.

On a quiet alley near Wright Park, the Tacoma Hemp Co. operates a brisk patient exchange out of an unmarked building fronted with a steel gate and a buzzer. Push the buzzer, and an attendant emerges and asks for medical authorization and identification.

Once inside, patients sign a form appointing Tacoma Hemp as "my agent for the sole purpose of procuring substances which I may order for personal medical use."

North End Club 420 went online with an elaborate Web site on Dec. 1 and two weeks ago rented office space near the 38th Street bridge over Interstate 5 to use not only as a marijuana exchange but also as a social center and space for classes on marijuana law and cannabis cultivation.

Downtown, on Commerce Street, Tacoma Cross opened an outlet last month, with one-way black glass fronting the street and green crosses on interior doors. The group canceled an interview with a News Tribune reporter two days after the Supreme Court decision was announced.

"Our lawyers told us this is not a good time," said one of the organizers, who asked not to be identified.

In addition, dozens of local providers advertise on the Internet, including several who offer free delivery.

The organizers of the three biggest groups, most of whom prefer to remain anonymous, don't like the word "dispensary." They don't like "co-op" either, because both are forbidden in state guidelines.

"Call it a 'patient exchange,' " said Morocco Kyashna-Tocha, who runs the Green Buddha Patient Network, a statewide service based in Seattle.

Kyashna-Tocha said Green Buddha has more than 1,000 medical marijuana clients and says she typically gets about 150 calls a day from prospective patients.

Since Dec. 1, when Club 420 went online, 132 people have registered as members.

Legal Details

For legal justification, most medical marijuana networks work their way through the same narrow loophole in the law.

Recognizing that some patients might be too sick to grow their own marijuana, the law allows eligible patients to appoint a "designated provider" who can grow pot for them.

The law stipulates the designated person can be the provider for only one patient at a time. But it doesn't say how long that "time" must last.

Organizations such as Tacoma Hemp and Green Buddha have clients sign legal documents appointing them as agents but only for as long as it takes them to hand over the marijuana.

Also, nothing in the law says a medical marijuana patient can't be the designated provider for another patient, a technicality used to legitimize large sharing networks and "community gardens."

Medical marijuana patients are allowed to have what the state Department of Health defines as a 60-day supply: 11/2 pounds of usable pot and 15 plants at any stage of growth.

That's more than most people can consume, creating the opportunity for adept growers to "donate" their excess marijuana to other patients. In exchange, growers typically accept monetary "donations" to compensate for their equipment and other expenses, medical marijuana supporters say.


"We just want to help people out," Allison says of Club 420. "We are not drug dealers. We started this because nobody had anywhere to turn except each other."

Kyashna-Tocha says essentially the same about the Green Buddha network.

However, both admit the degree of compassion varies widely among providers. Profit can be a powerful motivator, too.

When Club 420 went online with its Web site, Allison said, it immediately was deluged with calls from out-of-state growers, wanting to sell cheap, high-quality pot.

"We had people from California calling by the droves," he said. Club 420 turned them all down, he said, but he suspects not everyone resists the temptation.

Lisa Welch, a Tacoma HIV patient, weighs just 75 pounds and uses marijuana to control pain and stimulate her appetite. She said she was stunned to discover one local "network" asking $30 a gram for medical marijuana.

"That's more than drug dealers charge," she said. "It just makes you sick."

A more reasonable price would be $8 to $10 per gram, Welch said.

Profiteers damage the credibility of legitimate medical marijuana exchanges, patients say. Their credibility suffers further from how easy it is to be certified as a qualifying patient, according to prosecutors. One qualifying criterion in the state law is "intractable pain," a condition medical marijuana supporters admit is open to liberal interpretation.

The Washington State Medical Association does not keep track of doctors who recommend medical marijuana, but Jennifer Hanscom, the association's senior director and chief operating officer, says she does not believe many do.

"The general sense I have is that most doctors are wary of prescribing because it is still against federal law," Hanscom said.

But, for prices ranging from $200 to $600, a handful of local "pot docs," whose names are available in Internet chat rooms, will certify patients with a minimum of fuss.

'Right to a Defense'

Some Green Buddha patients have expressed concern about the Supreme Court decision, but most are unaware of the case, Kyashna-Tocha said. They're too sick to follow the news, she said.

Even before the ruling, Kyashna-Tocha said, she always counseled patients not to expect too much of the law.

"For most people, as soon as they get their authorization, in their mind it is all kosher," she said. "I tell them it is only a right to a defense.

"If they have marijuana they can't go to a national park. They can't go to an airport. I tell them never have it around children; never have it in your car unless it's in a lock box.

"In my first discussions with them, they are stunned."

Despite the court ruling, Allison says, he and his fellow patients are determined to persist with Club 420.

"There's an ethical, moral issue here," he said. "It's about human suffering and dignity. There comes a point where you either knuckle under and say, 'Yes sir,' and get in line or you take matters into your own hands and do the right thing."

The Case of Washington v. Fry

The Washington State Supreme Court's decision in the case of Washington v. Fry has taken some of the momentum out of the medical marijuana movement.

According to court records, here's how the case unfolded:

In December 2004, Jason Fry was growing pot in his home in Stevens County, in the northeast corner of the state.

Acting on a tip, two Stevens County sheriff's deputies approached Fry's house. When they walked onto the porch they smelled burning marijuana and, when Fry opened the door, the smell became stronger.

Fry declined to let the officers in, and his wife produced a medical authorization form identifying Fry as a qualifying medical marijuana patient.

The deputies phoned a local judge and got a telephonic search warrant and went inside. There, they found about 2 pounds of marijuana, more than allowed by the law. They arrested Fry for possession.

He wanted to mount a "compassionate use" defense under the medical marijuana law, but his case presented some problems. Not only did he have more than the allowed 60-day supply, but there also was an error on his medical authorization form.

The signing physician, Dr. Thomas Orvald, a Yakima heart surgeon whose name appears on many authorization forms, noted a horse had kicked Fry in the head three times and he suffered pain in his neck and lower back.

But on Fry's authorization form, Orvald listed "severe anxiety, rage & depression," as the debilitating conditions qualifying him for medical marijuana.

Those conditions are not among those listed in the state law, and a Stevens County judge refused to allow a medical marijuana defense, saying Fry wasn't a qualifying patient.

The Supreme Court, in an 8-1 decision, agreed with the lower court, rejecting the argument that Fry was being punished for his doctor's mistake and should have been allowed to present the jury with a compassionate use defense.

Also visit our "WA State News & Activism" section.

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