Posted by George Pappas
1. ASA Gives Strong Argument Before Appeals Court in Collective Case
This week ASA Chief Counsel Joe Elford presented oral arguments before the Court of Appeal for the Third Appellate District in Sacramento. The case in question, Williams v. Butte County, involves a small patient collective which was harassed by the Butte County Sheriff’s Office. Williams and six other patients had pooled their labor and resources to maintain a 41-plant garden on Williams’ property. But during one of the notorious Butte County sweeps several years ago, Deputy Sheriff Jacob Hancock came to Williams’ property without a warrant and required him to tear down all but twelve of the plants upon threat of arrest. The Deputy allowed Williams to keep six plants for himself and six plants for his wife.
This illegal seizure of the collective’s medicine was based on a Butte county policy that forbids patient collectives, unless every member of the collective lives on the property or physically tills the soil. This is a restriction not found anywhere in California law, so ASA sued. And won. The trial court agreed that the Butte County policy conflicts with state law, which does not contain such restrictions on collectives. Further, the court agreed with ASA that a patient could state a claim for unreasonable search and seizure under California law in such a circumstance.
So Butte County took the matter up with the Court of Appeal, and was was later joined by the California Peace Officers’ Association, California Police Chiefs’ Association, and California Sherriffs’ Association, who seem to be filing amicus briefs against us in nearly every ASA case.
At the hearing, the Court asked a series of tough questions to Butte County. Early on, one Justice asked whether any law enforcement can seize any medical cannabis at any time, since it remains illegal under federal law. After the Butte attorney answered that that was probably so, another Justice of the three-Judge panel remarked that this might violate the spirit of Proposition 215 and asked whether the electorate wouldn’t be “mystified” by a decision that would allow law enforcement to seize cannabis from patients without any restriction whatsoever. This was a very welcome start.
In the argument, Elford quoted from the California Supreme Court’s opinion in People v. Mower that “probable cause depends on all of the circumstances, including one’s status as a qualified medical marijuana patient.” Which puts a restriction on the ability of law enforcement to seize medicine from qualified patients — there must be probable cause under state law. And there was none here. Furthermore, the officer acted in this case without a warrant, and without any exigent circumstance to justify a warrantless seizure — he knew that Williams wanted to keep the marijuana and was not going to destroy it on his own. He had no good excuse for failing to get a warrant.
The case is an important one, and ASA expects a ruling within 90 days.
2. Galt, Vacaville Extend Moratorium
The Galt City Council last week voted 4-1 to extend a moratorium on allowing medical cannabis dispensing collectives to provide for patient needs in the city. In the process, they began movement on creating a permanent ban to be implemented once the 10 and a half month ordinance expires.
After an inquiry was made into Galt’s current city codes and zoning ordinances about the possibility of creating a safe access site for patients, city staff discovered there was no policy, and Galt Community Planning Director Curt Campion then requested that City Council adopt an urgency ordinance to provide staff direction should they receive an application for a dispensing collective. Galt Mayor Randy Shelton, Vice Mayor Barbara Payne and Councilmen Darryl Clare and Don Haines all voted to extend the moratorium.
Galt City Councilman Andrew Meredith was the lone voice in support of a dispensing collective. He said he recognized that cannabis has a therapeutic value for patients suffering from diseases like AIDS and cancer, and that those patients are entitled to receive the best possible care for their illness. The city will revisit the issue when the first draft of the permanent ban is ready for the council agenda.
Additionally, the City Council in Vacaville also passed a 45 days moratorium by a vote of 4-0 on Tuesday, claiming to want to wait for the outcome of an Appeals Court decision in Qualified Patients’ Association vs. the City of Anaheim, which looks at whether a ban on medical cannabis dispensing collectives is even legal under state law. Currently there are no dispensing collectives established in Vacaville, but the Council will review the issue as the moratorium expires.
LAPD Detective Supervisor Holcomb from the Devonshire precinct in the San Fernando Valley claimed that his department closed four Los Angeles medical cannabis dispensing collectives in recent days. Speaking with defense attorney Bill Kroger, who represents one of the collectives, Holcomb said the LA City Council’s ongoing effort to regulate these facilities is irrelevant because the associations violate state law. The extent of the police activity is still unconfirmed, but if Holcomb’s claims are true, this may be an early sign of an LAPD offensive against collectives in the San Fernando Valley.
Holcomb told the attorney that the collectives were illegal under People v. Mentch, a California Supreme Court case which limited the ability of cannabis growers to act as primary caregivers – but has no impact on collective and cooperative associations. The Detective also misrepresented California law when he told the attorney that selling cannabis was illegal under all circumstances. California Health and Safety Code Section 11362.775 specifically allows sales within the membership of a patients’ collective or cooperative. In People v. Urziceanu, the Third District Court of Appeal issued a decision affirming the legality of patients’ associations, and held that state law provides for a defense to cannabis distribution for collectives and cooperatives.
Detective Holcomb’s comments are not surprising or new. A culture of resistance to medical cannabis permeates the LAPD, as it does most law enforcement agencies. Officers often grasp at straws trying to explain away Proposition 215, Senate Bill 420, and the mountain of case law upholding our state law and patients’ rights. Holcomb’s arguments are remarkably similar to those offered by outgoing Los Angeles City Attorney Rocky Delgadillo when he offered a draft ordinance designed to close all storefront patients’ associations in Los Angeles earlier this year. The LAPD is apparently reading from the lame duck City Attorney’s talking points.
Law enforcement resistance to medical cannabis can not be explained by ignorance. Last year, California Attorney General Jerry Brown published guidelines saying that “a properly organized and operated collective or cooperative that dispenses medical marijuana through a storefront may be lawful under California law,” provided the facility substantially complies with the guidelines. This is not wishful thinking from medical cannabis advocates. This is direction from the state’s top law enforcement official.
There may be times when local law enforcement must intervene in a patients association to protect members and the welfare of the community at large, or to police bona fide violations of state law. However, blanket judgments and untenable legal explanations are evidence continued resistance and bad faith – not effective police work. Elected officials, voters, and finally the courts, must hold this kind of enforcement in check if we are to realize the opportunity for full implementation of state law offered by the new evolving federal policy.