Posted at 02:46 a.m. PST; Thursday, December 2, 1999
by Carol M. Ostrom
Seattle Times staff reporter
Local police often hint that federal law still makes possessing marijuana a crime, despite a state law allowing some patients to smoke and grow it.
But Western Washington's top federal prosecutor, U.S. Attorney Kate Pflaumer, has told Seattle police that her office is not interested in busting patients possessing a 60-day supply or less of marijuana.
In a letter written to Seattle police vice and narcotics Cmdr. Tom Grabicki, Pflaumer said she understood the conflict between state and federal law had put Seattle police in an "uncomfortable position."
In the spirit of clarifying her office's stance in a "complex and contradictory area of drug enforcement," Pflaumer wrote, policies already in place preclude her office from charging qualified medical marijuana patients under federal law.
"Given our limited funding and overwhelming responsibilities to enforce an ever larger number of federal offenses, we simply cannot afford to devote prosecutive resources to cases of this magnitude," she wrote.
"We therefore have no interest in the Seattle Police Department investigating or forwarding such cases to us."
Pflaumer's letter, written in August, is just now circulating beyond police circles. And the legal adviser for Seattle police downplayed the letter, saying it referred to "prosecution standards," not actual federal law.
Since late summer, police, the American Civil Liberties Union and others have been meeting to try to agree on guidelines to help officers determine who is a qualified patient and who is not.
A key sticking point has been the definition of what is a "60-day supply" of marijuana.
Many of the issues confronting police arose following a bust in May of a West Seattle man who suffers from seizures. The patient, David Means, was growing dozens of plants in his apartment. But he had documentation from a doctor and maintained police had entered his apartment illegally.
Although King County prosecutors declined the case, Seattle police refused to return the marijuana, arguing that an officer returning it to Means would violate federal law.
But in her letter, Pflaumer told the police that her office would not prosecute an officer returning marijuana to an owner he believes meets the "medical marijuana" standards.
Pflaumer also said: "I am assuming an authorized 60-day supply would be fewer than 250 plants."
Pflaumer, in an interview this week, said the reference to 250 plants does not imply immunity from federal prosecution for a patient possessing fewer than 250 plants.
The threshold standards maintained by her office, she said, are "flexible" and advisory.
"It would be a mistake to say we've given immunity to a certain number of plants," Pflaumer said. "It depends on the circumstances."
For example, she said, standards for smugglers at the U.S.-Canadian border are less, and current cases reflect that. Whatever the amount, Pflaumer added, a legitimate medical marijuana patient "better be prepared to show that that's what's necessary for one patient."
Normally, fewer than 250 plants would be below the level triggering interest by her office, a guideline developed before the medical marijuana law was passed last year.
Pflaumer also discounted police concerns that allowing patients to possess marijuana could jeopardize federal funding for police of the city.
Her letter was applauded by medical-marijuana advocates.
"I commend her for taking that position," said defense lawyer Jeff Steinborn. Police often use the excuse of federal intervention in drug cases, he said.
Dr. Frances Podrebarac, a Seattle medical-marijuana patient who has signed authorization documents for other patients, said he was pleasantly surprised by Pflaumer's letter.
"I feel that the Seattle police have been told that they can in good faith leave patients alone. I think it says that the federal government is not interested in the police department arresting patients," he said.
But Leo Poort, police legal adviser, said Pflaumer's letter didn't change much for the department. "No matter what the policy is, I can't change the fact that it's in violation of federal law."
Poort is one of a number of interested parties attempting to develop guidelines to help police determine whether a person using or possessing marijuana is a qualified patient under state law.
An issue that has proved troublesome through several drafts is whether patients should have to produce some documentation giving police guidelines as to what a "60-day supply" might be for a given patient.
"Docs would never do that and shouldn't do that, under federal law," said Jerry Sheehan, legislative director for the ACLU's Washington chapter.
Podrebarac would like to see Seattle adopt standards similar to Oakland, Calif., where members of a "Medical Marijuana Working Group" recommended authorities follow the "federal standard" they think has been adopted by the government, which supplies medical marijuana to a few qualifying patients.
That amount is approximately a half-pound of smokable marijuana per month. The group recommended patients be allowed to possess a three-month supply of marijuana, which they said translates into not more than 144 plants.
Poort said the working group here had looked at Oakland's guidelines, but he said California's law on medical marijuana was too different.
As it stands now, if patients won't produce documents attesting to what might be considered a reasonable 60-day supply for them, police encountering a questionable situation are left to rely "on our own experience and knowledge," Poort said.
Marijuana advocates argue that patients need guidelines so they don't live in fear of being busted and hauled into court to prove that they qualify under the law.
"Everyone seems to say they're not interested in putting patients in jail," Podrebarac said. "But we're a year out (from passing the state law), and patients still don't have any rules."
Carol M. Ostrom's phone message number is 206-464-2249.