—38— O’Shaughnessy’s • Winter/Spring 2013 BeyondTHC.com Punitive Bail Conditions Deny Presumption of Innocence Federal invasion takes down Oaksterdam University; Jose Gutierrez singled out for punishment at protest On April 2, 2012, the Presidential elec- tion was still far off and the various federal Lucido kept trying to explain agencies that prey on pot partisans were in that his obligation was to pre- heavy crackdown mode. The feds had been moving against dispensaries with increas- scribe the best possible painkill- ing vigor since the previous fall, when er, based on the patient’s history. California’s four US attorneys threatened landlords with forfeiture of their property acetaminophen with codeine (generic for if they didn’t evict tenants involved in can- Tylenol #3) and the muscle relaxant cyclo- nabis production and distribution. benzaprine (generic for Flexeril). Early on the morning of April 2 agents The magistrate, who went to college at from the IRS, the DEA, and the U.S. Mar- Yale and law school at UC Berkeley, kept shal’s Service raided the building at 1600 implying that Lucido should have put the Broadway in Oakland that housed Oak- patient on legal painkillers, and Lucido sterdam University. Thousands of people kept reiterating that his obligation was to preparing to enter the medical marijuana prescribe the best possible painkiller, based industry had been educated at OU and held on the patient’s history. Ryu said, “there’s its founder, Richard Lee, in high esteem. a whole world of painkillers out there,” as Federal agents also raided Lee’s apart- if Jose Gutierrez had some kind of ethical ment and took his computer, phone, and obligation to try a few more before she’d car keys. Other squads took down Lee’s consider allowing him to use “the one Oaksterdam Gift Shop and Blue Sky cof- Mural by R.B. Morris III and Munir Sharif Munir was commissioned by Richard Lee painkiller in the world that would mask his feeshop/dispensary. and painted on the side of 1600 Broadway, the building into which Oaksterdam Uni- use of marijuana.” Word went out and medical marijuana versity moved in the winter of 2009/10. Overlooking a parking lot, the striking artwork Leonida informed the judge that there conveyed affection for the city of Oakland, with its functional public transport system activists raced to the scene to express their was in fact a lab test —contrary to what (BART), architectural treasures such as the Tribune building, placid Lake Merritt, the Pre-Trial Services claimed— that could outrage. The protest soon shifted from out- great port with its container ships, and the opulent Fox Theater. (OU was the second-larg- side 1600 Broadway to the nearby coffee- distinguish metabolites of the plant from est contributor in the campaign to restore and reopen the Fox.) After the federal raid on metabolites of Marinol. The musclebound shop, where agents could be seen through April 2, 2012, new landlords bought the building and painted over the mural. The school Gibson countered that Pre-Trial Services’ the big plate glass windows in the act of has relocated to 1734 Telegraph Ave. “The mural is gone, but the spirit and businesses of confiscating and destroying. Oaksterdam survived,” says Dale Sky Jones, the OU chancellor. “The dispensary, the gift contract with a lab would not cover the cost Jose Gutierrez, holding a sign that called shop, and the university, which hosts the museum exhibition, are all open. of the more sophisticated test. the feds “Bullies!” and wearing a mask of As Ryu again remarked the multitude a bull, was in the front line on the side- that the beating he’d received was severe- Gibson (who looks like he spends half his of strong, effective, legally available an- walk outside the Blue Sky. Apparently the enough punishment for his response to two waking hours in the gym), filed a “violation algesics, Leonida said “Are you saying he agents inside the small cafe felt threatened agents shoving him. (You can see Gutier- memo” expressing suspicion that Gutierrez should take opiates because they can be and called for back-up. Another squad ar- rez being kicked in the head in the accom- was using Marinol to cover up marijuana identified [by the Pre-Trial Services lab]?” rived. Witnesses report that they briefly panying photo by Michael Short of the San use. Gibson sought an order from Ryu for- Ryu replied vaguely that we don’t make huddled and then began shoving people Francisco Chronicle.) bidding Gutierrez to use Marinol, which the law but we have to follow the law. Her aside as they approached the front door. Gutierrez, 50, is the father of children is synthetic THC. Marinol is an FDA-ap- final order was that Gutierrez explore alter- There was no order to disperse. ages fives and two. His partner Sarah proved drug. For reasons that defy com- natives to Marinol with his physician and Three protesters were arrested. An un- Shrader runs the Sonoma County chapter mon sense, the psychoactive compound report back on Sept. 11. identified middle-aged man wearing an of Americans for Safe Access. They live in in marijuana has been placed on Schedule Outside the courtroom Lucido thought Anonymous mask was released from the Sebastopol, the town where Jose grew up. III by the US government, while the whole about things he might have told the mag- van taking the prisoners to jail after a mes- His brother is a contractor and Jose worked plant remains on Schedule I. istrate: There are many people for whom sage came over the radio that all hands in construction for many years —“every- Assistant Federal Public Defender Ellen Cannabis works better than anything else were needed at another OU in Oakland — thing from framing to roofing.” His back Leonida challenged the court’s authority to relieve various symptoms... It is unlike “Oikos University,” a Christian-run trade went out in 1999. (“No carpenter makes to impose such an order based solely on any other drug in terms of mechanism of school where a madman had just killed it past 40 without back trouble,” knowl- Gibson’s suspicions about her client. She action... What else is there to induce appe- seven people. edgable Norm P. once generalized.) An called Frank Lucido, MD, who testified tite?... Charges of resisting arrest would soon be auto accident in January 2012 exacerbated that he had prescribed Marinol for Gutier- Haven’t we all thought, a little too late, dropped against activist Danielle Schum- Gutierrez’s semi-disabling condition. rez in April because he considered it the of the perfect things we could have said in acher. Jose Gutierrez was charged with “Not Guilty” likeliest option for pain relief, based on the some situation? The French have a term for assault on a federal officer, a felony, and “Not guilty,” said Gutierrez on Friday, history he had taken. Gutierrez told Lu- it: l’espirit d’escalier, which refers to the released on a bond of $20,000. July 13, when Magistrate Judge Donna cido that Cannabis was the painkiller that staircase you just walked down when the Some witnesses say Gutierrez had been Ryu asked how he was pleading to the as- worked best for him. Lucido took him at right-on comments occurred to you. singled out —two agents went for him sault charge. his word and prescribed Marinol, which is Post-Arraignment Developments before he responded. His supporters hope Ryu had previously ordered Gutierrez a source of THC but lacks other beneficial U.S. District Court Judge Phyllis Ham- that members of a Bay Area jury review- not to smoke marijuana while free on bail. compounds produced by the plant. ilton is hearing the criminal case against ing evidence of the episode will conclude This punitive condition had been requested In response to skeptical-but-polite ques- Jose Gutierrez. Magistrate Ryu has contin- by a bureaucratic entity called Pre-Trial tioning by Ryu, Lucido consulted Guttier- ued to handle aspects of the case relating to Services. At Gutierrez’s arraignment in rez’s chart and named two other drugs he bail conditions. July a Pre-Trial Services officer, Kenneth had used in the past to treat his back pain: Gutierrez went back to Lucido and got a prescription for Vicodin, which gave him stomach cramps. He was then prescribed Tramadol, another synthetic opioid that continued on next page

“Big Texas” said the nametag of the female agent shown here guarding the door to OU. She would claim she was injured (scraped knees) while trying to arrest Jose Gutierrez Photo by Michael Short of the San Francisco Chronicle shows law enforcement adminis- at Coffeeshop Blue Sky. tering “street justice” to Jose Gutierrez in the form of kicks to the head. Jose Antonio Gutierrez BeyondTHC.com BeyondTHC.com O’Shaughnessy’s • Winter/Spring 2013 —39—

Gutierrez continued

Oakland police knew by 9 a.m. on April Some people only make the argument from alcohol, as well as attendance at reha- 2 that multiple search warrants were be- they think has a practical chance of pre- bilitation programs… have become all-too- ing executed by the feds, and that protests vailing; Tod always made the argument familiar requirements of pretrial release… were likely, no areas had been taped off for he thought was true. Cannabis should be “Many judicial release orders exhibit legitimate assembly outside Coffeeshop the first line of treatment for many medi- confusion about or disregard for the dis- Blue Sky. cal conditions, he reasoned, based on its tinction between pretrial release and post- “Most egregious,” Lerman says, “is their benign side-effect profile. If Cannabis is conviction punishment. Judges determin- failure to tell the crowd outside the coffee- equally effective —not necessarily more ing pre-trial release are not authorized to shop to disperse.” She says witnesses will effective— than, say, Tylenol, it should be act as social workers or agents of public Marinol —generic name “dronabinol”— is testify and video will confirm that “law en- preferred for reasons of safety. Tylenol can retribution. They need to stop pretending pure THC. forcement never told people to move. They cause liver damage, and often does. otherwise.” Gutierrez said barely worked. At this point huddle and then begin moving on people.” Ryu agreed that he could use Marinol —if Lerman refers to Judge Hamilton as Abstinence as Punishment Kosher Marinol he could pay and make arrangements for “our only protection from law enforce- In July 2012 the New York Times ran While judges deny the right of pain pa- “collection” and testing by a lab that distin- ment imposing what they call ‘street jus- an op-ed piece about the inherent unfair- tients to medicate with Marinol, scientists guishes Marinol from the forbidden plant. tice.’” Meaning, in this case, cops kicking ness of judges setting onerous conditions funded by the National Institute on Drug Gutierrez arranged to use ElSohly Labs people in the head for exercising their First as terms of pretrial release. Did Magistrate Abuse are suggesting that it might be just in Jackson, Mississippi, which tests for Amendment rights. Ryu read it? The cogent essay by law pro- the thing to wean marijuana addicts off the THCV in the urine. (Mahmoud ElSohly, The officer who Gutierrez allegedly as- fessors Dan Markel and Eric Miller would herb! PhD, is our nation’s only legal marijuana saulted has not claimed any injury as a have reminded her: “Before anyone is At the 2012 meeting of the Internation- grower, according to the federal govern- result of the encounter, but a U.S. mar- proven guilty in a court of law, the Con- al Cannabinoid Research Society a team ment. He also operates a research and test- shal whose nametag read “Big Texas” stitution extends the presumption of inno- from Johns Hopkins led by Ryan Vandrey ing lab.) Marinol, being pure THC, would reported that she suffered scrapes on her cence.” reported, “Dronabinol dose-dependently not leave traces of THCV; the forbidden knees while trying to make the arrest. Wit- The authors decry “a pervasive phenom- attenuated cannabis withdrawal and re- plant would. nesses say Big Texas had been knocked to enon hiding in plain sight: the abuse of bail sulted in few adverse side effects or conse- So, once a month Gutierrez drives to the ground by her fellow officers as they and other pretrial release powers for puni- quences on cognitive performance... With- a facility in Santa Rosa and pees into a rushed from 1600 Broadway in response tive and rehabilitative purposes.” drawal suppression may be therapeutically cup while being observed by a man who to the call from the group that felt trapped Markel and Miller “don’t dispute that de- beneficial to individuals trying to stop can- undoubtedly feels grateful to have a job. inside Coffeeshop Blue Sky. fendants can be, say, monitored by tracking nabis use, and [our] data corroborate prior The precious bodily fluid is then Fed-Exed devices while they are released. But flight reports that withdrawal can be suppressed overnight as hazardous waste. WWTD? risk and crime prevention don’t justify safely with dronabinol.” “The whole thing costs about two-hun- There’s bitter irony in Jose Gutierrez’s bail condtions… which have far more to Sounds almost right for Jose Gutierrez. dred-and-twelve dollars,” says Gutierrez. fight for the right to medicate with Mari- do with punishments or “A hundred and fifty to the lab, thirty-nine nol. Patients almost unanimously report to moral education tech- for the collection, and then between forty- doctors in the Society of Cannabis Clini- niques. While such sanc- eight and sixty for the mailing.” cians that the “crude plant” is more effec- tions could be permitted Gutierrez will have to follow this costly, tive than pure THC, which leaves them after conviction, they are absurd procedure until his case is disposed knocked-out loaded. flat-out unjustified be- of by Judge Hamilton. He is now being Tod Mikuriya used to argue that, given fore adjudication… represented by Tony Serra, E.D. Lerman, its benign side-effect profile, marijuana “The use of bail con- and Omar Figueroa, all pro bono. A hear- should be the first line of treatment for ditions as a means of ing is scheduled for February 13, the day many conditions. He wrote, “The first-line low-level punishment is this issue goes to the printer. treatment for any condition, efficacy being more widespread than Lerman plans to argue that it’s a case equal, would be the drug or procedure least is generally understood. of government misconduct. Although the likely to cause harm.” Drug testing, desisting

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