S.F. to U.S.: Back Off on Medical Marijuana Law

Medication: Court fights are shaping up for city that revels in defiance. Some say it's flirting with anarchy.

By MARIA L. LA GANGA, Times Staff Writer

Thursday, March 19, 1998

SAN FRANCISCO--Here in the self-proclaimed capitol of defiance, they are preparing to wage a war, a battle of conscience over medical marijuana to be fought on two distinct and separate fronts: the city versus the state of California, the city versus the federal government.

Willie Brown joined forces Wednesday with several other California mayors, firing off a salvo of letters to Washington, asking the Clinton administration to stop persecuting medical marijuana clubs. Two days earlier, Dist. Atty. Terence Hallinan--the city's chief law enforcement officer--had promised that the city would distribute marijuana on its own and threatened that police officers would stop making marijuana arrests if the San Francisco clubs are closed.

Citywide rallies are planned for Tuesday, when federal prosecutors take club operators to court here. Hallinan will appear at an early morning prayer-for-pot breakfast, while two county supervisors will address a noon demonstration.

As the courts and the state grapple with interpreting Proposition 215, which legalized marijuana for medical purposes, this city is in lock-step in support for marijuana to relieve the suffering of patients with ailments such as AIDS, cancer and glaucoma.

"We have people who are suffering for health reasons whose suffering is apparently alleviated by the use of marijuana," Hallinan said. "The city wants this. We have seen proof."

Critics Fear Erosion of Norms

This is not the first time that San Franciscans have ignored state and federal laws to tread what they felt was the moral high ground. But it is probably the city's most united front in the face of possible prosecution. From the average voter to the office of the mayor, the message to state and federal law enforcement officials is loud and clear: Back off.

But one person's fight for justice can be another's fomenting anarchy. Some historians and experts in the legal and drug policy fields look at the battle brewing here and worry about its implications.

While Hallinan boasts of pride in "San Francisco having its own conscience," political historian Richard DeLeon voices "a sense of astonishment that little San Francisco is throwing its weight around and asserting its autonomy."

"They're really pushing the envelope with this," said DeLeon, author of "Left Coast City." "There's a sense of erosion of the norms and responsibilities of national citizenship. Those are disintegrating. There could be a proliferation once again of each municipality going their own way, and that portends something pretty dangerous." Thumbing official noses at other people's policies is practically a sport in San Francisco. The last decade alone offers a wealth of examples.

In 1992, then-Mayor Frank Jordan--formerly the chief of police and considered conservative in these parts--made good on a campaign promise to sign legislation endorsing needle exchange programs as a means to fight the spread of AIDS.

Needle exchange efforts were illegal under state law at the time. But two years earlier the city's health commission had supported such programs, and city voters had approved Proposition O, which asked the Legislature to eliminate penalties for the use and distribution of hypodermic needles without prescriptions.

Today, needle exchange is legal if a city or county is under a state of medical emergency, said Supervisor Tom Ammiano. "So we vote one in every two weeks. That allows for needle exchange."

In 1989, the supervisors--whom Ammiano describes as "running the gamut from moderate to progressive"--voted to declare San Francisco an official "city of refuge" and barred police and city employees from cooperating with federal authorities in any potential deportation matters.

Four years later the supervisors watered down the sanctuary law--but only a little and only when threatened with the loss of millions of dollars in state and federal funds. Today, Hallinan says, city employees can turn over only the names of convicted felons to the Immigration and Naturalization Service.

And five years before state voters approved Proposition 215--which passed by a larger margin here than in any other county--San Franciscans adopted city Proposition P, which urged the legalization of hemp medication, including marijuana. It passed with 80% of the vote.

DeLeon ranked the state's 58 counties on their level of political tolerance, using a variety of state propositions and weighing how the counties voted. The propositions included those concerning English-only legislation, the quarantine of AIDS patients and the fate of affirmative action.

Although DeLeon's index shows that the Bay Area as a whole is more tolerant than the rest of the state, San Francisco is what is known in statistical parlance as an "outlier."

"San Francisco is both a statistical outlier and a conceptual outlier," DeLeon said. "It stands out as way different from everyone else."

Gavin Newsom is the county's newest supervisor--a fourth-generation San Franciscan and the only straight, white male on the board. Newsom is proud of his region's place on the cutting edge of public debate and describes the city's behavior this way:

Sometimes, he said, "we need to preempt the government. You feel compelled to do that sometimes when the country does not represent your constituency."

When it comes to making medical marijuana available at all costs, he said, "we need to do things that thumb our nose at the status quo. You're dealing with people's lives. . . . It's gutsy and bold and risky but that's what San Francisco is all about."

Resisting Federal Laws

Just wait a minute, responds an incredulous Mark A.R. Kleiman, UCLA professor and drug policy expert. For starters, he notes, there are far more important drugs than cannabis that are being withheld from American patients. If you want to pick a fight, why waste your time with this one?

That said, Kleiman worries about the precedent that San Francisco is setting. After all, he says, "there's good reason to obey the Constitution when you can."

"God knows what would happen if the city of San Francisco started having its health department pass out cannabis," Kleiman said. "The fact that those people are doing a city job is no defense against a felony charge."

And just look at some of those in history who have taken it upon themselves to flout the nation's laws. Kleiman's favorite examples are the Nullification Crisis of 1828 and 1950s efforts to block school integration in the South.

As the Civil War began to brew and Southern cotton barons ostensibly chafed under federal tariffs, John C. Calhoun came up with the Doctrine of Nullification, a concept that declared all states sovereign and therefore able to nullify any federal law that interfered with their interests. Not terribly long after, the South seceded from the Union.

And then there was Arkansas Gov. Orval Faubus, who used his National Guard troops to block the mandated integration of Central High School in Little Rock.

"Now here we have Terence Hallinan bravely arranging himself with Orval Faubus and John C. Calhoun," Kleiman said. "What kind of company is that?"

San Franciscans would probably rather align themselves with the early 19th century judges who chose to ignore the fugitive slave law. That law required judges to turn in runaway slaves to their masters; many judges refused, joining forces with the abolitionist movement in breaking the back of slavery.

But Franklin Zimring, a professor of law and the director of the Earl Warren Legal Institute at UC Berkeley, argues that "making this into either Orval Faubus at the courthouse door or Harriet Beecher Stowe is a little premature."

At issue here is a complicated interplay of local, state and federal issues. On the one hand is federal law, which says that marijuana is illegal. Under the U.S. Constitution, federal law is supreme. However, the federal government has discretion about what laws it goes out of its way to enforce. "Just because marijuana is illegal, the federal government doesn't have to load all its guns," Zimring said.

"If Willie Brown were making a legal argument, he'd be in deep water," Zimring said. "But he's not. He's doing what he does best--making a political claim. And the politics of this is very much in the free field."

Which brings us to this week. On Wednesday, Brown joined the mayors of Oakland, Santa Cruz and West Hollywood in writing to President Clinton to ask that the administration drop its federal lawsuits against six California cannabis distributors and their 10 operators.

"I am deeply troubled by the Department of Justice lawsuits aimed at shutting down medical marijuana dispensaries in our cities," Brown wrote. "The harmful impact the closure of these patient clubs would have on patient health and public safety cannot be overestimated." The mayors asked in the letters that Clinton "drop the lawsuit and work with state and local officials to find an amenable solution that will put patients first. In the interim, I ask that you implement a moratorium on enforcement of federal drug laws that interfere with the daily operation of the dispensaries."

Brown has charged the local health department with overseeing the marijuana clubs in concert with the district attorney's office. And when Hallinan filed court documents Monday stating that the city would distribute marijuana to patients if the clubs are closed down, Brown supported Hallinan's position--although state Atty. Gen. Dan Lungren threatened potential prosecution of city workers.

While campaigning for governor in Sacramento, Lungren said: "All I know is that I took an oath to uphold the law . . . and I would hope San Francisco officials do the same. . . . I don't know how you can say . . . because I'm an elected official I don't have to do what everybody else does."

But in his weekly news conference Tuesday, Brown said that Hallinan was "on the right track." In addition, he said, the health department is "ready to put the [distribution] operation together."

One big question remains: Just how far will official and unofficial San Francisco go to protect the availability of medical marijuana? Hallinan's answer is the elliptical, "What we do we will do with the advice of the city attorney and in a way that we believe is legal." Ammiano is a little more forceful but no more revealing: "I think we'll go to the mat on this."