http://www.oregonlive.com/news/oregonian/index.ssf?/base/news/118904732993670.xml&coll=7 Ruling protects pot patients
Privacy - A federal judge denies a grand jury access to Oregon medical marijuana treatment records
Thursday, September 06, 2007
ANNE SAKER
The Oregonian Staff A federal judge has thrown out sweeping subpoenas for patient records kept by Oregon's medical marijuana program and a private clinic, saying privacy concerns overruled a grand jury's demand for information.
Chief U.S. District Judge Robert H. Whaley in Yakima ruled on the subpoenas four months after a grand jury in that city issued them. The grand jury wanted to know about 17 patients who got medical marijuana from a grower with operations in Oregon and Washington.
Advocates for medical marijuana have said the subpoenas marked a new tactic in federal efforts to stop state-run programs such as Oregon's. In California, federal drug agents have closed medical marijuana dispensaries and prosecuted doctors who prescribed marijuana to patients.
The state of Oregon and the private Hemp and Cannabis Foundation went to court this summer to stop the subpoenas, and Whaley convened a hearing Aug. 1.
In his eight-page decision issued Tuesday, Whaley wrote that grand juries have wide latitude to conduct investigations and can issue subpoenas for almost any kind of information. The subpoenas cannot be quashed unless the person or organization fighting the subpoena can show the demand is unreasonable, the judge said.
Whaley found that the subpoenas against Oregon's program and the foundation were unreasonable.
"There is an obvious tension between the state's authorization of the production and use of marijuana as a medicine and the federal authority to make such activity a crime," Whaley wrote. "The point at which that tension should be broken by the compelled production of records to a federal grand jury has not been reached with these subpoenas."
Oregon voters enacted the state's medical marijuana program in 1998, and 14,868 state residents hold patient cards. Another 7,115 people hold licenses to grow medical marijuana; they cannot sell marijuana but can accept donations to defray expenses.
The state law governing the program expressly states that medical records will be kept confidential.
The Hemp and Cannabis Foundation is a Portland organization with clinics in Oregon, Washington, Colorado and Hawaii where doctors can examine patients and determine whether marijuana would be useful as medicine.
Whaley tossed out the subpoena to the foundation because its medical records "represent implementation of the state's program and are integral to the success of the program."
D. Paul Stanford, the foundation's founder and chief executive officer, said Wednesday the ruling will "protect medical marijuana patients' records and confidentiality. There are limits to the government's power to intimidate doctors and patients, and fortunately, the federal courts have delineated those limits."
Adam Wolf, a lawyer for the American Civil Liberties Union's Drug Law Reform Project who argued on behalf of the foundation, said the ACLU believes the case is important. "This should reassure physicians and patients that they are safe," Wolf said.
Assistant U.S. Attorney James Hagerty in Yakima, who is presenting the evidence to the grand jury, was on vacation and not available to comment. When contacted last month about the subpoenas, Hagerty refused to discuss the investigation.
But Stanford said the grand jury is looking at one man who ran a Goldendale, Wash., grow site for Oregon patients and an Estacada site for Washington patients. Stanford said that activity was not allowed under either state's medical marijuana program.
Madeline Martinez, executive director of the Oregon branch of the National Organization for the Reform of Marijuana Laws, was jubilant over the ruling.
"I'm celebrating! Power to the people!" she said. "We were really afraid that this big, broad arm of the government was trying to overreach. We're patients. We're not criminals. We're just thrilled to pieces about this."
The ruling comes just before Oregon NORML, the Hemp and Cannabis Foundation and other groups convene the third annual Hempstalk festival this weekend at Sellwood-Riverside Park. The city of Portland had turned down the group's application for a permit for the event but relented after the ACLU stepped in.
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Ads appearing each week on the back of the
Stranger and
Seattle Weekly – and similar papers on the West Coast and in Hawaii – are pretty much picking a fight with the feds: "Medical marijuana. Our doctors can help." The ads then provide a phone number for The Hemp and Cannabis Foundation clinic, which connects patients with doctors who specialize in writing medical marijuana authorizations for the sick and dying. To the the Drug Enforcement Administration, however, THCF is flagrantly running a multi-state business that permits people to violate federal law.
On May 24th, the feds had had enough; federal prosecutor James Hagerty, at the behest of the DEA, filed a subpoena for the records of 17 individuals, 14 of whom were patients with marijuana permits from doctors at the clinic. But the subpoena had broader implications, too. 11 of those named were registered patients with Oregon's Department of Human Services medical-marijuana program, and
the subpoena also demanded that the State of Oregon turn over those patients' private medical records to the feds.
But in a formal rebuke yesterday afternoon, a federal Judge sided with the state and the clinic, granting a motion to quash both subpoenas. "
Absent a further showing of necessity and relevance, compliance with the subpoena would impact significant State and medical privacy interests and is unreasonable," wrote Judge Robert H. Whaley of the U.S. Court Eastern District of Washington. The ruling represents a major defeat for the DEA and a victory for states with dissenting drug policies.
Adam Wolf, a staff attorney for the ACLU's Drug Law Reform Project, was the lead counsel for the clinic. On the phone this morning from Santa Cruz, he summarized the decision by saying, "Doctors and their patients who use medical marijuana are safe from the prying eyes of federal prosecutors."
What Wolf didn't say is that had the ruling gone the other way it would have ominous ramifications. Paul Stanford, director of THCF, says forcing the state and clinic to hand over private records "would have had a chilling effect, making it more difficult for patients to get past the paranoia of registering with the state, as [required by law] in Oregon."
Really, who would want to join a medical marijuana program if it meant your medical records became an open book and SWAT teams could come crashing through your door as you lay on your death bed? (As it stands currently, authorized patients are immune from conviction in states with medical-pot lawsas long as they grow a small enough amount to stay out of federal court.)
The case originated out of Yakima, Washington. Three individuals suspected of growing marijuana were alleged to have distributed pot to the patients named in the suit. Originally, feds sought all medical records from those patients; then restricted the request, in oral argument before the judge, to request only addresses and phone numbers, according to yesterday's order. The shift in scope, to basic contact information already available to the all-seeing eyes of the feds, showed the DEA's cards. "They were trying to intimidate patients and doctors from participating in the medical marijuana programclearly unnecessary for the investigation [into the three suspected marijuana growers]," says Stanford.
The judge saw through the bullshit, too: "
The Government has not shown why it needs to obtain all of the addresses and phone numbers from the State of Oregon and the THCF Medical Clinic rather than from some other source."
Federal prosecutors may ask judges to reconsider the decision in the 9th District Court of Appeals.