Wednesday, July 1, 2009

Local police need to adapt to state law

Last Sunday, the Orange County Register printed a "reader rebuttal" from Garden Grove police chief Joseph M. Polisar defending the department's refusal to return medical marijuana to patient Felix Kha.

Polisar argues that Kha failed to produce a note from his doctor when police confiscated his medicine. Kha later presented the note during a court apperance. The district attorney confirmed its legitmacy and the drug charges were dropped.

"Kha then brought a motion requesting that the marijuana be returned," Polisar writes. "The district attorney opposed the motion, but the court ordered the marijuana returned."

The ensuing battle cost the city nearly $250,000.

Polisar states that "federal law makes the possession, use or distribution of any amount of marijuana illegal," setting up the quandary he faced as chief in returning Kha's medicine.

First, he says, "the department was very concerned about being put in a position of having to violate federal drug laws, or even appear to be complicit in a violation of federal law, by returning the marijuana."

Second, he continues, "the department was concerned about the conflict created between state and federal law."

The city's decision, of course, turned out to be ill advised.

The case is similar to one that occurred several years ago in San Luis Obispo when police refused to return medical marijuana belonging to Donovan No Runner. The department argued against giving the medicine back to No Runner on the same grounds: that distribution of controlled substances violates federal law.

A superior court judge, however, ordered the city to return No Runner's herb.

The city council had proposed fighting the court decision to hand over No Runner's bag of green, confiscated during a routine traffic stop.

Instead, that city wisely chose against fighting the court's ruling: "The city is an agency of the state," explained then Interim City Attorney Gil Trujillo, "and we're following state law and a court order."

The city was also facing huge deficits at the time and could ill-afford to wage a court battle that it was likely to lose.

No Runner's attorney, Lou Koory, said: "We're just happy that common sense prevailed."

Americans For Safe Access, which represented Kha in his battle with Garden Grove, points out that seizures of this sort are not uncommon, despite California's clear guidelines on the use of medical marijuana.

The organization notes that it has compiled reports from "nearly eight hundred patient encounters with local or state police during a period of more than two years. These reports show a glaring trend: more than 90 percent of all encounters result in medicine seizure by police regardless of any probable cause."

Additionally, ASA adds, "seizure of medical marijuana from qualified patients and primary caregivers has taken place in 53 of California's 58 counties. These violations of state law occur in both urban and rural locales, in the north as well as the south, and by both city and county law enforcement."

The court's ruling in Kha's case, ASA argues, should help departments throughout California revise their policies regarding the seizure and return of medical marijuana. It is hoped that these policies will be adjusted to reflect community values and standards in which medical marijuana is legal, and to cease harassing patients. §

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