Court Says Patients Can Collectively Grow Medical Marijuana

June 30, 2009

Steve Elliott, SF Weekly

Some rural sheriff's departments still haven't really come to terms with the fact that medical marijuana is now legal in California, despite having had since 1996 to adjust to the concept. But in a landmark ruling, an appellate court today protected the right of California medical marijuana patients to collectively cultivate the herb under state law.

The California Third District Court of Appeals issued the 2-1 ruling in the case of County of Butte v. Superior Court, in which seven patients in Paradise, Calif., formed a medical marijuana collective.

Americans for Safe Access (ASA), a nationwide medical marijuana advocacy group, filed a lawsuit in May 2006 on behalf of 56-year-old David Williams and six other collective members after a 2005 warrantless search of Williams' home. The Butte County Sheriff's Department forced Williams to uproot more than two dozen marijuana plants or face prosecution. Deputy Jacob Hancock told Williams that growing collectively for multiple patients was illegal; California state law, in fact, does allow for collective cultivation.

ASA's media liaison, Kris Hermes, said the group  "was compelled" to file the Williams lawsuit "after receiving repeated reports of unlawful behavior by Butte County law enforcement, as well as by other police agencies throughout the state."

Butte County Sheriff/Coroner Perry Reniff and his department had attempted to impose a de facto ban on medical marijuana patient collectives, according to the ASA, which decided to pursue the case to show that collectives and cooperatives are protected under state law.

"This ruling by the California courts sends yet another strong message to state law enforcement that they must abide by the medical marijuana laws of the state and not the competing federal laws," said Joe Elford, ASA chief counsel and the attorney who litigated the case on behalf of Williams. Elford said that the propriety of Deputy Hancock's conduct is measured by California, not federal, law.

The court went further, stating that deny medical marijuana patients protection from warrantless intrusions and seizures by law enforcement "would surely shock the sensibilities of the voters who approved [Proposition 215]." The ASA found it especially noteworthy that the court asserted the Compassionate Use Act of 1996 is not simply an affirmative defense to criminal sanctions, but "...we see an opportunity for an individual to request the same constitutional guarantee of due process available to all individuals, no matter what their status, under the state Constitution. The fact that this case involves medical marijuana and a qualified medical marijuana patient does not change these fundamental constitutional rights or an individual's right to assert them."

Today's decision upholds Butte County Superior Court Judge Barbara Roberts' September 2007 ruling, in which she stated that seriously ill patients collectively cultivating "should not be required to risk criminal penalties and the stress and expense of a criminal trial in order to assert their rights. Judge Roberts' ruling also rejected Butte County's policy of requiring all members to physically participate in the cultivation, thereby allowing collective members to "contribute financially."

"In addition to protecting patients' rights to collectively cultivate, the Court has reaffirmed that medical marijuana patients enjoy the same constitutional rights as everyone else," said the ASA's Elford, "including the ability to file civil rights actions when those rights are violated."

The Butte County Sheriff's Department was already known for its zealous anti-marijuana enforcement. The first medical marijuana supplier in the state to be prosecuted in federal court after the passage of Prop 215 was originally arrested by Butte County officers. Chico resident Bryan Epis received a 10-year sentence in federal court in 2002 for medical marijuana cultivation after Butte County officers raided his home in 1997 and seized 458 plants.

Observers say today's court decision could have repercussions statewide in other (predominantly rural) counties with pot-phobic local law enforcement.

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