Friday, November 15, 2002

Tell it to the Judge:
Five years later, some still ignore Prop. 215
By Murphy McMahon

SANTA MONICA, California—At first, the “fear” is difficult to understand. After all, according to Proposition 215, a doctor can safely recommend medical marijuana without risk of law enforcement intervention or medical board sanction.

Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.

But Dr. William Eidelman says that he only began recommending pot when he realized that other doctors were scared to do so, since the plant is a prohibited Schedule I narcotic. And now, after twenty-six years as an M.D., he is without his license. His patients' recommendations are no longer valid. The Medical Board of California suspended his license last May, after a complaint filed in July 2001 led to intervention by narcotics officers.

The Sting

On October 8 and 10, 2001, after three years of giving recommendations, Eidelman was the target of an undercover sting by the San Bernadino County Sheriff’s and Santa Monica Police Departments. Officers posing as patients came to the physician’s office, requesting medical marijuana. Their reasons varied—one claimed to have nothing wrong, but just wanted to get high; another claimed back pain. But Eidelman, a firm believer in the plant’s healing and pain-relieving qualities, issued a marijuana recommendation to each. Prop. 215’s ambiguous language, which protects “the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief,” would seem to imply that Eidelman violated no laws by making the recommendations. But the officers returned shortly, and with a search warrant they confiscated Eidelman’s computer (with confidential patient records).

An eyewitness account of the sting was published in the October 21, 2001 Las Vegas Review-Journal. According to the source, one of Eidelman’s patients, “[the narcotics officer] kept saying, ‘You're here to buy a pot note, aren't you?’” Background checks were run, in hope that the officers could justifiably detain one of the patients in Eidelman’s office. When the checks didn’t turn up anything, the detectives weren’t exactly apologetic. “The detective gave me back my belongings and said, ‘If you really have a medical condition, I recommend you go see a real doctor who will treat you with real medicine, and stop running around trying to get a fix.’”

Three days after the sting, Eidelman and his lawyer succeeded in getting a San Bernadino Judge to order the return of his laptop and patient records. But the records of the undercover agents who posed as patients were deemed admissible. Months later, the Medical Board reviewed the records, found evidence of negligence, and ruled to suspend Eidelman’s license. The ruling claimed that he violated health and safety codes against “issuing prescriptions for a controlled substance for illegal purposes” and “prescribing to addicts” (HSC 11153 and 11156, respectively). The records indicated that Eidelman did not perform a physical examination on the undercover agents, and that he did not have an examination room, nor basic medical equipment used for examinations. The charges still dumbfound Eidelman. He does have an examination room, adjacent to where he meets with patients, and he claims that his eyes are the only medical equipment necessary to give a marijuana recommendation. “All I need to do is look at a knee scared from surgery,” he says, “or consult a medical record.”

See You in Court

On October 29, just ten days before Eidelman’s settlement hearing, the Ninth Circuit Court of Appeals in San Francisco ruled that the feds cannot revoke a doctor’s license for recommending medical marijuana. To many, it seemed to signal the triumph of Prop. 215 and the protection of free communication between doctors and patients. To Eidelman, the ruling was “beautiful.” But it was not even mentioned at his settlement hearing, because “they still give states the right to discipline doctors who don’t do physical evaluations,” he explains.

At the hearing, Medical Board lawyer Rajphal Dhillon made the Board’s position clear: surrender your license. Though he claims a settlement is still possible, Eidelman will have to face a full hearing, scheduled to begin December 4, if he wishes to continue as a licensed physician. But he fears that the hearing will be “expensive and emotionally brutal.”

"The Myth of Medical Marijuana”

According to Eidelman, the sheriffs who raided his office are all members of the California Narcotics Officers’ Association (CNOA). Founded in 1964, the CNOA claims 7,000 members, including “local, state, and federal peace officers, prosecutors, law enforcement personnel, and other national and international associates.” Like the DEA, CNOA aims to discredit Prop. 215—also known as the Compassionate Use Act, or HSC 11362.5—and other attempts to reevaluate Drug War legislation.

For both CNOA and the DEA, the facts occasionally complicate fighting the good fight. The DEA, for instance, cites a 1999 Institute of Medicine study to “assess the potential health benefits of marijuana” on its Exposing the Myth of Medical Marijuana website: “The study concluded that smoking marijuana is not recommended for the treatment of any disease condition.” But reporting on the same study, CNN wrote, “A report released Wednesday by a federal advisory panel backs up claims by some doctors and patients… that marijuana can play an important role in medical treatment.”

Dr. Janet Joy, who oversaw the Institute of Medicine study, writes via email that, “For the medical & scientific community, the biggest issue is the smoking problem. Not the THC. (Of course, the DEA is another community altogether.)” Her parenthetical note implies the clear aversion, on the part of law enforcement agencies and associations like CNOA, to endorsing the legitimacy of therapeutic cannabis.

Lt. Joe Klein is the chair of CNOA Region 5, which includes San Bernadino, Riverside, and Orange Counties. As a spokesperson, he is eager to talk about CNOA’s role as a “training organization” pushing “anti-legalization legislation.” Though sworn to uphold the voter-approved Compassionate Use Act, Klein considers the bill a “complete fraud.” “You can’t get a doctor’s prescription for cocaine or heroin,” he explains, “and you can’t get a prescription for marijuana.” But while pot is “very dangerous,” Klein is fine with Marinol, an FDA-approved synthetic THC pill produced by pharmaceutical giant Unimed.

When reminded that Prop. 215 was approved by 55% of California (and 51% of Orange County, Klein’s response is immediate: “They were duped. Totally duped—this was nothing less than a step toward legalization.” But when reminded that, regardless of CNOA’s stance, he is sworn to enforce the law, Klein pauses, as if to reload his empty gun. “We would favor a system where there was a database, one that would allow officers to ask for a state-issued license and verify on the spot.”

While there is no state system of identification cards, the city of San Francisco has led the way in issuing an equivalent, to provide official documentation of a patient’s right to use cannabis. Eidelman says he referred his patients to the California Patient Caregivers organization, whose office (just down the street from his own) could provide an identification card that includes a 24-hour telephone number for patient verification.

According to CapitolTrack, CNOA opposes SB 187, a Medical Marijuana bill that “requires [Department of Health and Services] to establish and maintain a voluntary program for the issuance of [state identification cards] to qualified patients.” Klein says there are different opinions on the issue amongst precincts. John Lovell, CNOA’s high profile lobbyist in Sacramento, says that CNOA opposed the bill because it would have set the amount of pot a patient can have. “CNOA says that if marijuana is a medicine, then the doctor’s prescription should set the amount—not some politicians in Sacramento,” Lovell says. But under Prop. 215, doctors cannot “prescribe” marijuana. They can only recommend it.

“The whole bill is just shit,” says Lovell of Prop. 215. “I have this tape—I wish I could show it to you. [Millionaires and legalization supporters] George Soros, John Sperling, and Peter Lewis are sitting around a table after 215 won, saying how this is just the first step toward legalization.” This month, Soros, Sperling, and Lewis are profiled in a Time Magazine piece on pot. The three have been backing propositions for greater leniency toward nonviolent drug offenders rather openly, but Lovell tells it as if it’s his secret.

Eidelman, too, makes it no secret that he finds prohibitory laws ludicrous. “I consider [the Marihuana Tax Act of 1937] unconstitutional, and therefore null and void as if it never existed. You know Marbury vs. Madison?” He recently authored a Medical Freedom Amendment, meant to address the glaring omission of such a protection in the original Bill of Rights. “Even ‘recreational use’ of a drug is a kind of self-medication,” the proposal concludes. “One is using it to create a physiological effect, usually one of enhanced well-being and relaxation. No physician could say that recreation is not essential for health, so even the recreational use of a botanical product is part of the search for health and well-being.”

Tell It to the Judge

Not one of five Orange County narcotics officers interviewed—all CNOA members—had a problem with the way that ambiguities in Prop. 215 affect current marijuana protocol. It allows officers to ignore HSC 11362.5 while making an arrest for possession, dealing, or cultivation. Without any hesitation or concern over the apparent shift into Napoleonic law, Capt. Kim Markuson even agreed that, simplified, the policy is “you’re guilty; then in the courts you can be proven innocent.” Markuson is the head of the Special Investigations Division of OCSD, and a “lifetime” (non-due-paying) member of CNOA.

The OCSD website describes Markuson’s function as “program manager” of the Regional Narcotics Suppression Program (RNSP), “a multi-jurisdictional program involving federal, state and local police agencies focusing on major drug traffickers and money launderers.” Naturally, much of his attention is focused on the violent Mexican cartels that bring cocaine, methamphetamine, marijuana, and heroin across the border, generating incomprehensible profits. But when asked to explain the phenomenon, he does not mention that those lucrative profits exist because prohibition hampers a free market, artificially inflating prices. Nor does he mention the ease at which the feared and unassailable cartels recruit poor Mexicans and Mexican-Americans to become armed drug smugglers. “[Orange County] is a high intensity drug area,” he says, “because of our proximity to Mexico. All the drugs come from there, basically… Want to know something? I will not even go to Mexico. They are violent people.”