Oct 122010
 

In reference to the use of cannabis as medicine, one member of the Fresno County Board of Supervisors recently proclaimed in a public hearing, “I know it’s the law, but…I don’t like it!” The Board of Supervisors proceeded to unanimously enact an ex post facto ban prohibiting any outdoor growing of medicinal marijuana. The Board members then warned patients, “If you have any marijuana plants growing on your property you better move them indoors or pull them out in the next 24 to 48 hours…or we’ll come after you!”

The Board of Supervisors has also engaged in dispensing inappropriate medical advice, suggesting that if a patient is “truly in pain” he/she can simply turn to one of the numerous opiates offered by the corporate pharmaceutical companies.

Everyone is entitled to his/her own opinion about medical cannabis, Fresno attorney Brenda A. Linder writes in the local Community Alliance. However, the rule of law binds everyone, regardless of his/her personal or political agenda. Fresno city and county politicians and elected officials have a long history of acting as if the laws that govern the rest of the state’s population do not bind them. Unfortunately, this method of local government extols a tremendous cost both financially and through the loss of individual rights.

One local columnist recently opined that Fresno County should not be allowed to discontinue any youth program, or terminate any employee, until it passes a local ordinance to regulate medical marijuana and impose a much needed tax in this area. Sounds reasonable. However, in order for our local officials to be able to reasonably look at the area of medical marijuana they must first separate fact from opinion and political ideology.

Shannon McCarthy spoke at the Fresno City Council meeting on September 16, reminding her elected officials that medical marijuana patients have a legal right to grow the plant. She also said that it is the City Council’s duty to protect their rights and not criminalize what they are doing.

On November 5, 1996, California voters passed Proposition 215, the Compassionate Use Act (CUA), which decriminalized the cultivation and use of marijuana by seriously ill individuals with a doctor’s recommendation. Proposition 215’s stated purpose was to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana, and to “ensure 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” (Health & Safety Code Sections 11362.5(b)(1)(A)-(B)).

In 2003, the legislature enacted the Medical Marijuana Program Act (MMPA). The express intent of the legislature was to “(1) Clarify the scope of the application of the [CUA] and facilitate the prompt identification of qualified patients and their primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers. (2) Promote uniform and consistent application of the act among the counties within the state. (3) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects (Stats. 2003, Ch. 875, Section 1, Subd. (b)(1)-(3)) [italics added].

Particularly relevant to Fresno, the MMPA also added Section 11362.775, which provides that qualified patients, persons with valid identification cards and the designated primary caregivers of qualified patients, who associate within the State of California in order to collectively or cooperatively cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions for the possession of marijuana [11357], cultivation of marijuana [11358], possession for sale [11360], transportation [11360], maintaining a place for sale, giving away or use of marijuana [11366], making premises available for the manufacture, storage or distribution of controlled substances [11366.5], or the abatement of a nuisance created by premises used for manufacture, storage or distribution of controlled substance [11570].

The MMPA specifically touches on land-use law by proscribing in Sections 11362.765 and 11362.775 the application of Sections 11570, 11360 and 113665 to uses of property involving medical marijuana. However, last year the City of Fresno (and many other municipalities because they were “educated” on how to do so by state law enforcement associations) prosecuted several collectives and cooperatives under the pretext of a land-use ordinance.

As one appellate court recently asserted, it seems odd that the
Legislature would disagree with federal policymakers about including medical marijuana in penal and drug house abatement legislation, but intended that local legislators could side with their federal — instead of state — counterparts in prohibiting and criminalizing property uses solely on the basis of medical marijuana activities.

Section 11362.765 expressly immunizes “a qualified patient or person with an identification card” who possesses, transports, gives away, delivers, or processes marijuana for medical purposes (People v. Urziceanu (2005) 132 Cal.App.4th 747, 785).

As the Urziceanu court observed, “[t]his new law represents a dramatic change in the prohibitions on the use, distribution, and cultivation of marijuana for persons who are qualified patients or primary caregivers” (Ibid).

It has been frequently asserted by law enforcement that the CUA merely provided the qualified patient or primary caregiver with a “defense” that could be asserted after arrest. However, as the courts have determined since 2005, the MMPA provided much more. The immunization from prosecution or punishment afforded by the MMPA results in a lack of probable cause to arrest a state law compliant qualified patient or primary caregiver.

Cannabis used medically does have several well-documented beneficial effects. Among these are: the amelioration of nausea and vomiting, stimulation of hunger in chemotherapy and AIDS patients, lowered intraocular eye pressure (shown to be effective for treating glaucoma), as well as general analgesic effects (pain reliever).

Fresno County refused to comply with state law directing counties to implement an identification card program for qualified patients and primary caregivers. As the Board of Supervisors noted recently, “Because we just didn’t like it.” Fresno County refused to comply with this state law until the California Supreme Court issued its decision in County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798. Meanwhile, local qualified patients still suffered the cost and humiliation of being arrested, processed and prosecuted before they could present their “defense” of being a qualified patient under the laws of this state.

I often hear the opposition still reference only the CUA, as our sheriff did recently, to support the claim that the medical marijuana laws of this state merely afford a “defense” subsequent to arrest.

The MMPA’s specific itemization of the marijuana sales law indicates it contemplates the formation and operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana (Urziceanu, supra, 132 Cal.App.4th at p.785).

When acting to shut down dispensaries, local officials said the state medical marijuana laws do not allow for the operation of a dispensary and patients only have the right to “grow their own” marijuana. Recently, while attempting to justify the total ban on any outdoor growing of medicinal marijuana the Board of Supervisors asserted that there is no “lawful” right to collectively cultivate the marijuana plants one’s doctor has deemed necessary for one’s medical needs.

The area of penalizing criminal behavior and the area of medical regulation is historically under the purview of the state, not local government. Local governments continue to attempt to circumvent the state’s authority in these areas by labeling outright bans as “land-use” regulation. However, when local governing bodies announce to the community that they better “tear out” all of their outdoor medicinal marijuana plants or the sheriff will be “coming after you,” their planned enforcement of such “land-use” ordinances begins to sound more like a criminal sanction.

In 2009, Americans for Safe Access (ASA) compiled and published a comprehensive assessment of statistical information and interviews dispelling the propaganda that medical marijuana dispensaries cause crime. The study relied primarily on the FBI’s Preliminary Annual Uniform Crime Report. The data revealed that the presence of a dispensary in a neighborhood can actually improve public safety and reduce crime. Kern County’s sheriff pointed out in that county’s “Staff Report Proposing an Ordinance Regulating Medical Marijuana Dispensaries,” dated July 11, 2006, “existing dispensaries have not caused noticeable law enforcement of secondary effects and problems.” Residents in San Francisco reported that the presence of dispensaries actually improved neighborhoods. The city administrator for Oakland’s ordinance regulating dispensaries reported that the areas around the dispensaries may be “some of the safest areas of Oakland” due to the level of security and surveillance provided by the dispensaries.

Shootings involved around outdoor marijuana grows is Fresno’s official justification for the recent “urgency” ordinance banning all outdoor growing of medical marijuana. This constitutes reactionary politics at its finest. Local supporters have been urging Fresno to regulate medical marijuana for many years, to no avail. Local medical cooperative growers state that when they have called the Fresno Police Department for assistance in preventing the immediate theft and diversion of their medical marijuana plants they are informed that it is their own “problem” and that the police will not respond to such a call.

Perhaps, if our local law enforcement officials and politicians who are sworn to “serve and protect” could get past their own personal biases, agendas and political platforms to uphold all laws of this state and not merely those with which they agree, this community would not now be in a state of “urgency.”

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