Medical marijuana
lawsuit possible

The ACLU demands that the
U.S. attorney retract his opinion

The American Civil Liberties Union says it will sue U.S. Attorney Edward Kubo unless he retracts statements made earlier this week that doctors who distribute marijuana for medicinal purposes could face federal prosecution.

There was no immediate response yesterday from Kubo, who did not return calls from the Star-Bulletin.

The U.S. Supreme Court upheld this week the power of Congress to prohibit and prosecute the possession and use of marijuana for medical purposes.

Kubo called the ruling a "death knell" for medical marijuana in Hawaii, saying that anyone who distributes the drug would be treated like any other drug dealer.

"All that (ruling) means, as far as Hawaii is concerned, is if you distribute marijuana for any purpose, including for medical reasons, you will be subject to criminal liability," Kubo said.

He added, "As far as I'm concerned, physicians and caregivers can no longer rely on that excuse to distribute marijuana in Hawaii."

In a letter to Kubo, ACLU officials said yesterday that his statements could be "reasonably interpreted to mean that federal officials in Hawaii will bring federal criminal prosecutions against physicians who certify that a patient is qualified under the state's medical marijuana statute."

Such prosecution would be unconstitutional, the ACLU said, citing a case upheld in 2002 by the 9th U.S. Circuit Court of Appeals that says doctors have a constitutional right to recommend and discuss medical marijuana with patients.

The Supreme Court denied the federal government's request for a review of the case the following year.

ACLU officials called Kubo's interpretation of the ruling "misguided."

"He simply got it wrong," said Lois Perrin, attorney for the ACLU of Hawaii. The organization demanded that Kubo issue a written retraction by Wednesday or face a lawsuit.

The lawsuit would seek a court order protecting doctors from federal arrest or prosecution for recommending marijuana to patients, ACLU officials said.

Specifically, they are asking Kubo to issue a statement saying that doctors who merely certify patients for marijuana use be protected from criminal prosecution.

Perrin said several doctors had called the ACLU and said they no longer would recommend marijuana to patients because of Kubo's comments.

"Those statements are already chilling the free speech of doctors," Perrin said.

Hawaii is among 10 states with laws allowing limited use of marijuana for medicinal purposes, but Perrin said no other U.S. attorney had made comments similar to Kubo's.

Monday's 6-3 decision by the high court overturned a 2003 ruling by a federal appeals court that had shielded California's Compassionate Use Act, the medical-marijuana initiative adopted nine years ago by the state's voters, from the reach of federal drug enforcement.

The lower court had held that Congress lacked constitutional authority to regulate the noncommercial cultivation and use of marijuana that does not cross state lines.

Authorities say there are about 2,600 certified medical marijuana users in Hawaii.