PROSECUTORS THREATEN POT DISPENSARIES
Last week, California Attorney General Jerry Brown issued guidelines to regulate medical-marijuana-related activities in California.
Ostensibly, he issued these guidelines to clarify the boundaries regarding patients, caregivers, collectives and law enforcement. Ultimately, however, the vagueness of the guidelines will only further motivate law enforcement and district attorneys throughout the state who are sincerely trying to follow the laws.
In 1996, California voters passed Proposition 215, a referendum allowing the state's residents to use medical marijuana when a physician approved or recommended its use. Retail stores - commonly known as dispensaries or cannabis clubs - cropped up throughout California despite the fact the California statute did not specifically authorize them.
For the next eight years, the California courts handed down a number of decisions outlining the limits of the law. Despite the popularity and proliferation of the medical stores, the state judiciary indicated that operators of such businesses could not look to the California law for protection. The 1996 version of the law only recognized medical-marijuana patients and primary caregivers, defined by the law as people who consistently assumed responsibility for patients' health, welfare, or safety. While the definition seemed vague enough to encompass a variety of roles, the courts made clear that no one seemed to fit the definition of a caregiver. In fact, none of the cases between 1996 and 2004 ever deemed a defendant a caregiver.
In 2004, the California Legislature attempted to clarify the law to enhance the access of patients to medical marijuana. The additions to the law allowed for qualified patients and primary caregivers to collectively or cooperatively associate to cultivate marijuana, and suggest that those who do so should be immune from criminal liability for transportation, possession for sales, and sales of marijuana.
Again, however, the law failed to broaden the definition of primary caregiver. A look at the legislative record reveals that legislators, through SB 420, intended to put into place safe harbors by which patients would be immunized from arrest if they grew less than a certain number of plants. However, the statute ended up interpreting these as limitations and ultimately SB 420 in many ways ended up abridging rights instead of expanding them.
The question of whether a retail store dispensary would qualify as a collective activity was left unresolved in the statute. However, state prosecutors at their whims have continued to selectively prosecute operators of dispensaries as well as those cultivating marijuana.
Last week's dispensary guidelines do indicate that storefront dispensaries should not be prosecuted where their activities are not for profit and that dispensaries may allow their members to cultivate on behalf of the dispensary.
Despite the fact that the attorney general considers these dispensary-related activities in California law, it is not a binding authority on district attorneys whose power is still left unchecked. In fact, the attorney general's opinion that hashish is considered within the purview of the medical-marijuana statute is often disregarded by prosecutors who claim that they need not follow an attorney general opinion.
Finally, the guidelines do nothing to clear up the confusion regarding the meaning of nonprofit, though they do echo the Medical Marijuana Program Act's restriction of collective activities to those conducted on a not-for-profit basis. However, this emphasis will do nothing to explain what is meant by not-for-profit. Currently, police claim that any amount of money seized is evidence of profit-making activities.
I have seen the lengths to which prosecutors will exploit the vagueness of the law to prosecute people. The guidelines will do nothing to curb the arbitrariness with which law enforcement and prosecutors selectively enforce it.
Only when district attorney offices throughout the state start to rein in out-of-control prosecutors, who put more resources into finding loopholes in medical-marijuana defenses than into prosecuting real crime, will anything change. Only then will patients' and collective operators' rights be protected.
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