Butte's medical marijuana growing and distribution policy is challenged
April 26, 2007
Terry Vau Dell, Oroville Mercury-RegisterA legal showdown is looming in Butte County over whether people who grow medical marijuana can be prosecuted for providing the herb to others too sick or otherwise unable to grow it themselves.
District Attorney Mike Ramsey has established "guidelines'' that require all members of medical marijuana cooperatives to "actively participate in the cultivation'' process.
Attorneys for several medical marijuana growers contend the local policy conflicts with state law and are challenging it in court.
Another lawsuit on the issue is also pending.
Attorneys for a Butte County man said Thursday he will seek dismissal of felony pot cultivation charges on grounds that the court "lacks jurisdiction'' to prosecute a member of a medical marijuana coalition.
The defendant in that case, Robert Gordon Rasmussen, 22, has also filed a civil writ asserting that his incarceration was illegal, as is the "underground" local policy behind it.
Rasmussen was arrested earlier this month after Butte County sheriff's deputies allegedly found more than 100 marijuana plants of various sizes growing inside the defendant's home. Deputies had gone to the house after getting a complaint about a dog. One of the officers said he could smell marijuana in the residence.
Rasmussen told the deputies he was growing medical marijuana as a member of a legal patient collective. All the co-op's members had doctor's recommendations, according to court documents.
Gordon Dise, who describes himself as a "legal strategist and local activist," filed a writ of habeas corpus on Rasmussen's behalf, alleging the arrest was unlawful and that efforts by police to force Rasmussen to identify others in the collective violated their rights to privacy and subjected Rasmussen to a potential lawsuit if he complied.
Dise appeared in court Thursday, but because his writ petition had not been placed on the calendar, Judge Sandra McLean declined to hear it.
The judge has set a hearing in mid-June to consider a related defense motion to dismiss the charges against Rasmussen.
Omar Figueroa, a San Francisco lawyer who represents Rasmussen, said outside of court he will argue that his client had "immunity against prosecution'' because he was both a medical marijuana patient and part of a lawful collective.
Deputy district attorney Michael Candela on Thursday said he would not have a comment until he received Figueroa's written motion.
The prosecutor referred policy questions regarding medical marijuana co-ops to Ramsey, who was out of the office until today, according to his answering service.
Proposition 215, the 1996 initiative that legalized cultivation and use of medical marijuana with a doctor's recommendation in California, left open for several years the question of how persons who were unable to grow pot themselves could lawfully obtain it.
In 2003, the Legislature passed Senate Bill 420, which, among other things, authorized voluntary distribution of medical marijuana cards and permitted patients to "associate ... in order to collectively or cooperatively cultivate marijuana for medical purposes.''
It also set a personal limit for each patient of either eight ounces of dried marijuana or six mature or 12 immature pot plants.
Saying it wanted to "end any confusion'' the new law might raise, the Butte County District Attorney's Office subsequently published a set of written "guidelines" for local medical marijuana co-ops.
Among other things, it requires each member of a collective or co-op to be identified and to "actively participate in the cultivation'' process. Co-ops must document each member's "contribution of labor or resources" and not distribute to anyone outside of the co-op.
Joseph Elford, San Francisco attorney for Americans for Safe Access — a pro-medical marijuana organization, has sued the Butte County Sheriff's Office, on behalf of an Oroville man, David Williams.
The suit claims the same sheriff's deputy involved in Rasmussen's bust, Jacob Hancock, on Oct. 3, 2005, threatened to arrest Williams if he didn't destroy all but 12 of the 41 marijuana plants the Oroville man claimed to be growing for a seven-member collective.
Like Rasmussen's attorney, Elford contends the local district attorney's policy on medical marijuana collectives "is completely contrary to the will of the people."
The lawsuit seeks general and punitive damages, plus an injunction barring the Sheriff's Office from "such unlawful seizures in the future" involving medical marijuana collectives in Butte County.
A hearing is expected to be set in a few weeks on a pre-trial motion by the county to dismiss the civil lawsuit on legal grounds.