Debate Smolders on Whether Medical Marijuana is Already Legal
A Jacksonville law firm has created a firestorm in the already heated debate about whether Floridians should allow doctors to order medical marijuana for sick patients.
Lawyer Ian Christensen and his colleague Christopher Ralph contend that a constitutional change isn't necessary because current state law allows severely ill patients to grow and consume their own weed if they meet certain criteria and doctors say they need it.
But supporters of Amendment 2 say that what's now available to Florida patients falls far short of the treatment option that would be legalized if voters approve the ballot proposal this fall. Some even accuse Christensen and Ralph, doing business as "Health Law Services," of running a scam.
The pair has been charging sick Floridians $800 for a "patient identification card" designed to keep them from getting arrested for having dope.
The $800 fee includes $300 Health Law Services pays a doctor to determine whether a patient meets the medical necessity criteria. The rest of the money covers the cost of legal documents, legal services and the ID card, which is not associated with any government agency.
Christensen and Ralph, the group's legal administrator, are trying to convince sheriffs --- who've lined up against the proposed constitutional amendment --- that Florida law has for decades allowed severely ill patients who meet certain criteria to cultivate and smoke their own pot.
So far, at least one sheriff has agreed not to arrest individuals who can prove they meet the standards.
The dispute is grounded in an appellate court decision upheld by the Florida Supreme Court in 1991 involving a Bay County couple, Kenneth and Barbara Jenks. The decision established a "medical necessity" defense for critically ill patients who use marijuana.
Until recently, just a handful of lawyers were familiar with the Jenks case, and even fewer have used it successfully to keep patients caught with pot from being punished.
But Ralph and Christensen have put the "medical necessity" defense at the forefront of the debate about Amendment 2, which they once strongly supported but now call "a wolf in sheep's clothing" because, they contend, it would do away with patients' abilities to cultivate their own pot.
"Right now a sick patient can use marijuana in Florida. They can smoke it if a doctor says they can. They can do whatever they need to do. They can grow it," Ralph said in a recent interview. "So if we have available medicine, and we have available laws that allow its use and we have a law that allows the patient to grow it and we have a law that allows the physicians to order its use, what are we amending other than creating the commercialization of it?"
Critics accuse Health Law Services of misleading the public.
"It's so bizarre it's like up there with aliens arriving and Elvis is still alive," said John Morgan, the Orlando trial lawyer who has spent more than $3 million of his own money getting the amendment proposal on the November ballot and is traveling around the state debating its merits.
"This is almost like a cult. It's like Reverend Moon or Jim Jones type stuff. You don't even know where to begin. But I know this. It's against the law now. And I know this --- if you go and buy some marijuana for your mother with multiple sclerosis, you're going to jail," Morgan said.
The "medical necessity" defense was codified decades ago in a case involving the Jenks couple, who used pot to alleviate severe nausea caused by AIDS, which Kenneth contracted from a blood transfusion and then unknowingly passed on to his wife. The 1st District Court of Appeal overturned the couple's conviction for cultivating marijuana and of possession of drug paraphernalia. The ruling laid out three elements that remain the criteria to establish a "medical necessity" defense. The Florida Supreme Court later upheld the medical-necessity defense in a separate case.
Defendants must prove that they "did not intentionally bring about the circumstance which precipitated the unlawful act," such as shooting themselves in the foot; that they "could not accomplish the same objective using a less offensive alternative available," like medication; and "that the evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it."
In the Jenks' case, the "evil" was death. The court agreed with their doctor, who said that the couple would die if they couldn't smoke pot to alleviate their nausea and enable them to eat.
Lawyers familiar with the Jenks case say it has been used successfully on rare occasions and that its use is left up to the discretion of a prosecutor or judge.
"The fatal flaw in (Health Law Services') argument is (the medical necessity defense) requires an individual to get arrested and go to jail and be subject to the discretion of a county prosecutor to say they have a legal right to smoke marijuana," said Norm Kent, a lawyer who successfully used the medical-necessity-defense for the first time in Florida in 1987. "Amendment 2 is absolutely critical to the citizens of the state of Florida because it takes the decision of your use of marijuana out of the hands of an individual prosecutor and places it in the hands of your personal physician."
Ralph has persuaded at least one sheriff to consider something akin to "pre-clearing" patients who meet the criteria laid out in the Jenks case.
Jacksonville Sheriff John Rutherford, one of the sheriffs publicly fighting against Amendment 2, said he is working with Health Law Services and seeking advice from the state attorney's office on the matter.
"It's a legal issue that is still being hammered out. There's no program. There's no plan. (Ralph) has shown me his idea of how this could work, if the law is interpreted the way he interprets it but I'm not sure he's interpreting the law correctly yet. If he's telling people they can do this and not get arrested, that's not true," Rutherford said.
Rutherford also said he does not intend to arrest those "suffering from brain cancer or leukemia" or other debilitating diseases who have legal documents proving that they meet the medical-necessity defense guidelines.
Rep. Katie Edwards is a lawyer who played a key role in pushing through a measure, approved by the Legislature this spring and signed into law by Gov. Rick Scott, that legalized marijuana strains low in euphoria-inducing tetrahydrocannabinol, or THC, and high in cannabadiol, or CBD, for certain patients.
"My concern is for sick patients who are duped into believing that merely filling out some paperwork and paying $800 will get them access to marijuana. I think it's disingenuous to solicit clients with a patient ID card and other services that are simply not available without first being arrested and then going through the court system and then having the court address the medical-necessity defense," Edwards, D-Plantation, said.
Ralph, who is not a lawyer, said hundreds of people in Florida already meet the medical-defense requirements and are therefore legally allowed to grow and smoke their own marijuana.
Ralph and Christensen are basing their position on a complex interpretation of state and federal law, a Department of Health rule concerning doctors and Florida Supreme Court instructions regarding the medical-necessity defense. They say that, based on Florida law, patients have an absolute right --- not merely an affirmative defense --- to grow their own pot and even purchase it from someone else.
Law enforcement can't punish patients for following doctors' orders, Ralph said.
"If you're driving down the road and you're not wearing a seat belt, you're going to get a ticket. That is unlawful behavior. But if you get pulled over without a seat belt, and you hand the police officer the information from the doctor that says you can't wear one, then you can't wear one. They're not going to give you a ticket. … You are exempt from anything if a doctor orders it," he said.
Most other medical-marijuana law experts disagree.
"In my opinion, (Ralph) and his organization are a fraud. That $800 won't buy you the bail money to get out of jail when you get locked up by a cop who will laugh and scoff at it. It's a scam," said Kent, who is past president of the National Organization for the Reform of Marijuana Laws, or NORML.
Ralph points to an inter-agency memorandum issued by the state attorney's office in Manatee County dealing with Bob Jordan, whose wife Cathy has used marijuana for more than a decade to treat ALS and is an outspoken advocate of medical marijuana. Deputies raided the couple's home last year and confiscated marijuana plants. But prosecutors decided not to charge the Jordans after Kent, their lawyer, convinced them Cathy needed the pot to treat her disease.
"The state lacks a good-faith belief it can overcome a medical-necessity defense in this matter," the memo, sent to the Manatee County sheriff, reads.
Ralph has aggressively courted the Florida Sheriffs Association, trying to convince the group to endorse something similar to the Manatee County memo for individuals like Health Law Services' clients.
"All we need to do is sit down and talk about this. We're not changing the view from the public's perspective. We're changing the view from law enforcement's perspective. They're the people who matter. They're the ones with the badges. Nobody gets arrested by the state attorney," he said.
But Steve Casey, executive director of the sheriffs association, said the medical-necessity case law only applies in very rare cases.
"I am not aware of any sheriff’s office (or other law enforcement agency for that matter) that has adopted a policy to not enforce the marijuana laws in our state. … Medical necessity is a legal term, which is defined by statute and case law, and while it is possible that someone charged with possession of marijuana could raise this defense in court, this would be after the arrest/seizure has taken place, not before," Casey said in an e-mail. "The existence of this case law certainly does not invalidate any state and federals laws on the books."
The Jordans recently took to the web to complain about Health Law Services' use of their case to promote the law firm and its anti-Amendment 2 stance.
It took 15 years for the courts to recognize his wife's need for marijuana, Bob Jordan said.
"What they're saying now is they found some kind of loophole that nobody else has ever found," he said in a telephone interview. "I think they're going to hurt a lot of people. I really, really do."
Jordan and others accuse Health Law Services of opposing Amendment 2 because it would cut into the firm's practice.
But Ralph said his firm will soon drop its $400 portion of the fee and can't keep up with the number of clients seeking help.
But he insisted Health Law Services is trying to get law enforcement officials to sign off on the idea that medical marijuana is already legal so he and his partner won't have to fight for the rights of sick patients to use pot.
"We're not being paid to do this. There's no revenue coming to us that benefits us by getting this information out. Nothing. In fact, we're putting ourselves out of business," he said.