But three years after the law’s passage, hundreds of Californians are still arrested and prosecuted for medical marijuana, in part because they let their guard down, believing that Prop 215 would protect them.
Throughout California, and especially in the state’s rural northeastern region, prosecutors and police have a zero tolerance policy, even for simple possession of marijuana. People who sell marijuana, or provide or grow it as patient caregivers, are especially liable for prosecution and incarceration.
“The Shasta County district attorney and sheriff have publicly stated that they will arrest anybody for any amount of marijuana,” reports Shasta County pot activist Kim Levin. “No matter if you have a medical recommendation or not, no matter if you have only a tiny amount of marijuana, they still arrest you. Lots of seriously ill people have seen their medicine stolen and their lives ruined by this rigid and mistaken interpretation of the law. We have a rash of cases up here, where people have done everything they can to comply with the law, and still get busted. It’s cruel.”
Misinterpreting the law
The zero tolerance non-enforcement of 215 is based in part on the few court rulings that have sought to “interpret” the voter-approved law. According to an appeals court ruling in the 1997 People v Trippet case, 215 only provides an “affirmative defense” to be used at trial. Although the law states that “patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction,” courts and cops interpret this to mean that people can be arrested, jailed, and prosecuted for marijuana, regardless of their medical status.
The Trippet judges used a statement made in 1996 by one of 215’s proponents, San Francisco District Attorney Terrence Hallinan, to justify their ruling. The court held that Hallinan stated that 215 did not legalize marijuana use and that it merely allows defendants to assert a medical defense at trial. In effect, defendants have to prove their innocence.
Dennis Peron, perhaps the most visible sponsor and co-author of the ballot initiative, says, “The Trippet reasoning is faulty. I know what we intended the law to mean because I wrote the law. It was called the ‘Compassionate Use Act.’ We didn’t want sick and dying people arrested. With no clear evidence of sales, police were supposed to walk away. What’s compassionate about arresting somebody and putting them in jail, making them post bail and hire an attorney, all so they can prove that they were innocent to begin with? That is a completely idiotic and vicious interpretation of the law.”
Bill Simpich, an Oakland-based activist attorney who has been fighting the drug war and other government atrocities for nearly 20 years, says “it’s criminal that Prop 215 has not been implemented.”
For California Attorney General Bill Lockyer, who earlier this year commissioned a panel to examine 215 and hammer out guidelines for its implementation, Simpich’s objections may become a major headache.
“Lockyer and his predecessor Dan Lungren have violated their oaths of office by their handling of 215,” Simpich says. “As elected constitutional officers, they have the responsibility to ensure that the will of the people is implemented. Lungren actively worked with the feds to destroy 215, and Lockyer ran his election campaign last year saying he was totally different from Lungren and would do whatever it took to make the law work. He hasn’t, and I’m filing a lawsuit that demands that he and other government officials and agencies do their job and see that this law is put into effect immediately.”
Simpich’s lawsuit is the tip of an iceberg. Although the California marijuana lobby is unanimous in its opinion that Lockyer is far more intelligent and compassionate than Dan Lungren, a growing number of critics allege that Lockyer has not done enough fast enough. Activists and marijuana defendants such as Peter McWilliams have published open letters to Lockyer, in which they demand that the Attorney General force local prosecutors, police and federal officials to stop arresting medical marijuana users and producers. Critics say Lockyer should be intervening on behalf of medical pot defendants in counties where 215 is routinely ignored or violated.
Lockyer has also been asked to follow the 215 section that encourages “federal and state governments to implement a plan to provide for the sale and affordable distribution of marijuana to all patients in medical need of marijuana.” The Attorney General, who took office in January, has also been asked to protect medical marijuana distribution-production consortiums and clubs.
In response to these demands, Lockyer was reported to have told San Francisco activists that they could “quietly” open medical marijuana clubs. He also created a “marijuana task force” comprised of cops, activists, physicians, politicians and attorneys. According to Dave DeAlba, the task force’s coordinator, between 20 and 35 people make up the official panel, which meets at least once a month and is supposed to gather information, reach consensus, and then deliver a set of recommendations to Locker by autumn.
“This task force is not mandated by law,” DeAlba said, “but we need to do this because the law was passed three years ago people are still arguing about what it means. Their recommendations will not have the force of law, but will be used by Mr Lockyer and lawmakers to issue guidelines that will establish some statewide uniformity on this issue.”
“Uniformity” would be preferable to the current situation, in which where you live determines what police interpretation of 215 you are ruled by. In many rural counties, 215 means virtually nothing. In places like Oakland, city guidelines say you can legally cultivate dozens of plants and possess pounds of dried marijuana ? if you have a valid medical document and no evidence of sales, you will not be arrested.
Bobby Harris, a widely-respected political consultant and medical pot community activist, said that relying on Lockyer to ensure statewide 215 compliance might not be the way to go. “Here in Arcata,” Harris explained, “we brought together a team of police, politicians, prosecutors and medical pot providers and users. We worked out an agreement that lets everybody know what the standards are, how many plants, how much dried pot, what police are supposed to do to investigate whether use is medical. We respected patients’ rights, and we respected the right of law enforcement to do their job. This is being called the ‘Arcata model,’ and we believe that localized agreements with full community buy-in are the wave of the future. Our police chief isn’t worried that the feds will come here to ruin what we have achieved. Everybody knows that this is democracy at work.”
DeAlba admitted that the task force is struggling with complex questions: who is “seriously ill” enough to qualify for medical pot, how police can determine 215’s scope during a potential arrest situation, how many plants is too many, how local officials are or aren’t implementing the law, and what scientific and bureaucratic procedures are necessary to make medical marijuana legitimate.
According to Jeff Jones, the gutsy 24-year-old head of the Oakland Cannabis Buyer’s Cooperative who sat in as an observer at some of the meetings, the task force process “should have been more open-ended and not catered so heavily to law enforcement interests.”
Dr Tod Mikuriya, the courageous pot doctor who was researching and recommending medical marijuana long before 215 was enacted, told Cannabis Culture he was prevented from being an official member of the panel. “I’ve been relegated to sitting in and making comments at the end,” the Oakland-based physician said. “They are still being influenced, whether they will admit it or not, by John Gordnier, Lungren’s pot-hating hit man who for some reason has been given a prominent role in Lockyer’s administration.”
Mikuriya’s dislike of Gordnier’s role is echoed by attorney Simpich, who notes that Lockyer chose Gordnier to head the team of state attorneys who wrote the rebuttal to Simpich’s lawsuit.
“Gordnier is an unfortunate hold-over from the Lungren anti-215 regime,” Simpich explained. “He was Lungren’s point man for helping the feds dismantle 215 and bust the cannabis clubs. His arguments are the same ones he used when he worked for Lungren: the AG doesn’t have authority to intervene in local 215 problems, the AG doesn’t have a mandate to ensure a safe supply of medical pot, the AG can’t really do anything unless the federal government takes marijuana off? Schedule I status, the usual bullshit. He distorts what we said in our lawsuit, and then attacks his own distortions. I’m disappointed in Lockyer’s reliance on a person who was instrumental in helping Lungren thwart 215.”
Dissension and debate
The DeAlba task force drafted a lengthy set of guidelines in July, and its proposals were at least partially incorporated into a bill by Democratic State Senator John Vasconcellos, SB 848.
The Vasconcellos bill proposes a voluntary county health department registry of medical pot patients. For a fee, registrants will be issued identification cards that will supposedly be honored by police. The bill says statewide hearings will be conducted to determine how many plants and dried marijuana can be legally possessed by medical users, and offers instructions on how people can legally use, transport, and grow their medicine. It requires that registrants’ medical recommendations be in writing, and must come from California doctors, rather than out-of-state physicians. SB 848 prohibits medical pot use near schools, on school buses, or while operating motor vehicles or boats.
Lockyer’s task force and SB 848 have caused dissension in the state’s medical marijuana community. Dennis Peron, Steve Kubby, and others say SB 848 creates costly, unnecessary, and intrusive regulation and bureaucracy. Supporters, such as Scott Imler of the Los Angeles Cannabis Resource Center, say the guidelines are a workable compromise that pleases law enforcement without selling out patients.
Through spokespersons Hilary McClean and Nathan Barankin, Attorney General Lockyer said that “marijuana law has to be changed at the federal level or 215 is never going to work.”
Further, Barankin says, Lockyer “believes that 99.9% of law enforcement officers have done everything in their power to implement Prop 215.”
“This is a confusing and vague law, and law enforcement officers have bent over backwards to make sure that it is enforced properly, but they are confused; they don’t know what to do,” Barankin asserted. “We are going to make sure that law enforcement is happy with whatever we propose. Without law enforcement on board, Prop 215 will never work.”
Lockyer went to Washington, DC earlier this year, along with Attorney Generals from other Western states where voters have approved medical marijuana, to meet with federal drug czar Barry McCaffrey.
Lockyer asked McCaffrey to provide assurances that California policies would not be interfered with by federal officials. Initial media reports of the meeting said that McCaffrey responded by threatening to have Lockyer arrested if he tried to implement 215. Legions of McCaffrey-haters encouraged Lockyer to stand up to the drug czar, pointing out that Locker is a highly-placed elected official of the most economically important state in America, while McCaffrey is an unelected administrative official with the federal executive branch. They hoped Lockyer would throw down the gauntlet of states’ rights, provoking a constitutional crisis in which the state of California would take on or even secede from the US over the feds’ interference with 215 or the arrest of Lockyer by federal agents.
But Lockyer downplayed the conflict.
“McCaffrey didn’t really threaten to arrest him,” Barankin said. “The Attorney General expressed an interest in marijuana research projects, and McCaffrey indicated that such projects might violate federal law.”
Responding to repeated questions about the fact that some local district attorneys and police refuse to acknowledge or respect 215, Barankin said that “the Attorney General cannot intervene in local affairs. He knows that the police have to believe in this process, and he respects local political decisions. He has no constitutional duty to force local officials to do what he wants them to do. The only recourse people have is to do a recall election or to vote the district attorney out at the next scheduled election.”
Such assertions anger medical marijuana patients like Steve Scott, a 25-year-old HIV positive medical pot user who was twice arrested by police for possessing small amounts of pot in rural Northern California.
“The cops called me a faggot, stole my medicine, laughed at my prescription, and arrested me,” Scott said. “The prosecutors hassled me until the judge threw the whole thing out ? twice. There’s a horde of police who don’t like pot and they don’t like the law we passed. They aren’t confused about 215 ? they know exactly what they’re doing. More people are busted now than ever before, because we believed we passed a law that protected us. Lockyer needs to get his ass in gear and make sure cops obey the law. I can’t afford to buy my medicine, and I am scared to grow it. Why do cops get to kill me?”
Barankin says Lockyer is “doing everything he can to make sure that Prop. 215 is implemented in a fair and reasonable manner.”
“He voted for this law,” Barankin says, “He had family members who died in pain, and he feels compassion for the situation of terminally ill people. He understands the irrationality of a situation where doctors can prescribe morphine but not cannabis. But he has a responsibility to everyone concerned, not just marijuana advocates. He has a responsibility to law enforcement. And he is 100% against non-medical use of marijuana. The medical marijuana issue requires a big societal adjustment, and it will take time.”
Bill Simpich says it’s time to implement the law as written.
“A five year old child could understand Prop 215,” he says. “Lockyer, Lungren and other officials should be thankful that our lawsuit is not asking for money damages or jail time. We’re asking simply that the law be followed. There should be no prosecution or sanction against a person with a valid medical recommendation. We want health departments to be able to ensure a safe and affordable supply of medical marijuana, as specified in the law, by distributing seized marijuana that has been properly stored, and by cultivating marijuana for medical distribution. We want the government to stop wasting money undermining Prop 215, and start spending money to make it work.”
Although some organizations and individuals have cautiously endorsed the Lockyer/Vasconcellos proposals, saying that some guidelines are better than none, Northern California criminal defense attorney Dale Rasmussen says that writing guidelines to implement 215 is like “rearranging deck chairs on the Titanic.”
“I admire the intentions and zeal of people who wrote and passed 215,” said Rasmussen, “but it’s obvious to me and a lot of medical marijuana defendants that this law doesn’t protect them from arrest, forfeiture and prosecution.”
Rasmussen specializes in medical marijuana cases, and recently filed an appeal with the State Supreme Court that may generate the first official, precedent-setting ruling regarding the return by police of seized marijuana.
“I have to get these cases in front of appellate courts and get rulings on them,” Rasmussen said, “because 215 fails to address so many important issues. It doesn’t prevent police from seizing marijuana. It doesn’t force them to give it back or compensate you for taking it. It doesn’t address the use of marijuana while on bail or probation. It doesn’t stipulate punishments or penalties for police and prosecutors who maliciously arrest or prosecute medical marijuana patients. It doesn’t directly challenge federal prohibition or the idea that marijuana is contraband. It doesn’t address the issue of marijuana clubs or sales for medical use. In some ways, it has created more problems than it solved. I stand ready to write a new medical marijuana ballot initiative for next year’s ballot, one that will deal with all the relevant issues and leave courts, police and prosecutors with no choice but to leave legitimate medical marijuana patients alone.”
As he swung a pick-axe over his head while clearing land on his Northern California pot farm, Dennis Peron expressed frustration with those who violate or criticize Prop 215.
“Whenever Lockyer and all the rest of them are ready to hear the truth,” Peron said, “they can ask me what I intended for this law. We don’t need their implementing legislation or their permission. In my view, it’s simple: All use is medicinal. If a doctor recommends it, you grow or have as much as you want without being arrested or prosecuted. No registries, no bureaucracies, no confiscation, no caving in to police. This isn’t about politicians, or pleasing cops, or making more money for attorneys. It’s about compassion for sick and dying people.”
? Californians for Compassionate Use: email [email protected]; web www.marijuana.org
? 215 Now!: email [email protected]; web www.215now.com
? Attorney General Bill Lockyer: tel (916) 445-9555; fax (916) 323-5341; email [email protected]