The Crackdown Takes a Hit
January 29, 2013
David Downs, East Bay Express
The federal crackdown on medical cannabis in California has garnered headlines throughout the nation. But over the past fifteen months, there's been another, less-publicized crackdown on medical pot in the state. Many of California's local district attorneys, working with the League of California Cities and municipal police departments, have used a narrow, "make-cancer-patients-grow-pot" and "no-sales-of-pot" view of state law to declare scores of medical cannabis clubs unlawful.
The California Supreme Court upheld two appellate court rulings, saying that patients don't have to physically grow pot to be members of collectives and can exchange cash for weed. In short, the high court rejected the "make-'em-grow-it" argument that had been used by state prosecutors, cops, and city attorneys. In addition, cases against at least two Vallejo dispensaries — as well as one San Diego dispensary operator's conviction — were dismissed as a result of the court rulings clarifying club operators' and members' rights.
To fully understand the ramifications of the rulings requires a bit of historical background. California law essentially states that medical marijuana patients, their caregivers, and collectives are immune from being prosecuted under certain state drug laws. But many inland and Southern California communities have sought to block full implementation of these immunities, which were outlined in Proposition 215, approved by state voters in 1996, and SB 420, which passed the state legislature in 2003.
Instead of honoring Prop 215 and SB 420, these communities and their cops have sought to prevent doctors from recommending pot, and they've thrown scores of patients and operators in jail using extremely narrow interpretations of the law. For example, the League of California Cities and many California DAs believe cities have the right to ban collectives and dispensaries. DAs, especially ones in Los Angeles, have also closed down numerous clubs, arguing in court that sales at dispensaries are illegal. And prosecutors have frequently declared a collective illegal if its cancer patients don't physically grow some pot for the collective.
In October 2011, California's four US attorneys held a press conference declaring the state's growing number of medical marijuana businesses a target. Many local cops celebrated the federal crackdown, and were emboldened to shut down hundreds of medical marijuana collectives, especially in Southern and inland California, using state law. "Sales are illegal" and "not a true collective" became a common refrain from California law enforcement and prosecutors. And as a result, there were actually two crackdowns going on in California simultaneously — one by the federal government and the other by local cops, DAs, and city attorneys.
However, a number of appellate court verdicts over the past year rejected the narrow reading of state law that fueled the second crackdown. And now the California Supreme Court has upheld these appellate courts rulings. In particular, the high court on January 16 declined to review or "depublish" a Fourth District Court of Appeals ruling in the case of the People v. Jovan Jackson.
Jackson was a San Diego club operator convicted in state court in 2012. The appellate court overturned Jackson's conviction on October 24, finding that "the collective or cooperative association required by [state law] need not include active participation by all members in the cultivation process but may be limited to financial support by way of marijuana purchases from the organization."
The District Attorney's Offices of San Diego, Sonoma, Sacramento, and Los Angeles counties petitioned the state Supreme Court to review and overturn the appellate court's decision. And the League of California Cities asked the Supreme Court to not only review Jackson, but to "depublish" the appellate court's decision. When a decision is depublished, it's no longer precedent-setting and other courts don't have to abide by it.
Joe Elford, an attorney with Americans for Safe Access who represented Jackson in his appeal, said the Supreme Court's decision not to review or depublish Jackson was historic. "Even though the appellate court decision garnered significant opposition, patients have prevailed in their struggle to protect safe access to medical marijuana," he said.
The appellate court rulings had already started to rock California courthouses. On December 10, charges against two Vallejo club operators were dropped after a Solano County judge rejected prosecutors' assertions that Better Health Collective and Life Enhanced Services were unlawful because they engaged in sales and most members didn't grow weed. Better Health Collective lawyer Scott Candell of San Rafael said cops will have to invent a different excuse to harass collectives. "The law always was this," he said. "[Patients] don't have to be in the garden.
"All the [Jackson] case did was to spell it out and to confirm, 'Yes, this is the law,'" Candell continued. "For people who don't understand [the law] or are choosing to ignore it, it is much more in their face."
The League of California Cities did not respond to requests for comment nor did the Sonoma County DA's office. Officials in the San Diego DA's office wrote that "illegal drug dealers" are hiding behind state law, and they "welcome" more legal clarity from the courts.
Cancer patient and marijuana advocate Angel Raich of Albany said closing lawful pot clubs harms patients and increases black-market dealing on city streets. California communities should stop wasting taxpayer dollars. "Arguing that sales were illegal or patients had to grow pot was very popular not only with cops, but with cities and counties writing policy," she said. "They need to be put on notice.
"I think every DA and police chief should get a copy," Raich continued, referring to the court's decision. "A law is a law."