November 10, 2012

Legal Confusion Over Medical Marijuana In Southern California Continues

November 10, 2012
Gavel marijuana miami prosecutor

Gavel marijuana leafFour Ballot Initiatives Fail to Secure the Rights of Medical Marijuana Dispensaries to Exist in Four San Diego Cities While a Landmark California Appellate Court Decision Defines Dispensaries as Legal

By Terrie Best –  San Diego Americans for Safe Access

San Diego CA – Hidden in the clouds of vapor in some reporter’s desk is a story whose magnitude was almost missed in the hubbub of the 2012 presidential election. On October 24th, 2012, the Fourth District Court of Appeals in San Diego overturned a medical marijuana dispensary operator’s guilty verdict, ruling that storefront dispensaries are legal under certain circumstances. The published decision created case law with clear direction on those circumstances, thereby defining the legality of store front medical marijuana dispensaries.

The People v Jovan Jackson appellate decision emphatically rejected the idea that medical marijuana dispensaries are illegal; it also provided elements for a defense to dispensary operators who are often victimized by law enforcement unwilling to investigate whether the operators they target abided state medical marijuana law.

The San Diego District Attorney (DA) and failed mayoral candidate, Bonnie Dumanis’ modus operandi has been to charge all dispensary operators with crimes, making no attempt to apply the state’s medical marijuana laws in her investigations. She relies on her own interpretation of the law (interpretations that have been squarely rejected by appellate courts throughout the state), questionable tactics designed to keep evidence from jurors’ eyes, and continues to prosecute case after case, at great public expense.

However, if the comments of some of San Diego’s legal community who have read the Jackson appellate decision bear out, we should see a change in practice and a more cooperative DA when it comes to criminal prosecutions for distributing marijuana.  Certainly it would be more cost effective for the DA to use the appellate court’s decision to establish an investigatory procedure for determining if an alleged marijuana distributor is complying with California medical marijuana law before embarking upon a costly criminal prosecution.

Joe Elford, Americans for Safe Access Chief Counsel and the attorney who argued the appeal, has issued the following statement regarding the Fourth District’s ruling. “This landmark decision not only recognizes the right of dispensaries to exist and provide medical marijuana to their patient members, it also grants a defense for those providers in state court. By rejecting the Attorney General’s argument that patients who utilize dispensaries must collaborate, or ‘come together’ in ‘some way’ to cultivate the marijuana they purchase, the court is establishing a clear standard for dispensaries across the state.”

It seems apparent the appellate court recognized the need for a framework in which dispensaries can operate under state law. Because San Diego’s law makers have refused to hammer out that framework, the appellate court has done it for them. We can only hope the DA will take heed.

Lance Rogers who defended Jovan Jackson at trial had this to say in an on-camera interview: “The California appellate court gave an historic ruling which said three things.  1. Under state law it is legal to operate a store front medical marijuana dispensary.  2. It is legal to sell medical marijuana for medical purposes 3. If you are a sick and dying medical marijuana patient you don’t have to grow your medicine yourself, it is perfectly acceptable to buy it from somebody else.”

Melissa Bobrow, a local attorney issued this written statement in regards to the ruling, “This was an important decision for the legal community. We can only know the law when people like Jovan Jackson and his attorneys fight. We have another piece of the medical marijuana law puzzle in place – for now.”

Much blood, sweat, tears and grassroots activism has gone into the effort of patients in San Diego and its various municipalities to simply convince lawmakers to define zones where dispensaries can exist. This effort has been met with push back by lawmakers and law enforcers every step of the way. Obstacles from lawsuits, to ignoring the Medical Marijuana Task Force recommendations, to outright banning and simply refusing to open zones for dispensaries have thwarted San Diego patients for years.

Illustrating how organized and focused San Diego advocates have become, ballot initiatives were in place in Imperial Beach, Lemon Grove, Solana Beach and Del Mar

in the 2012 election in hopes some of these cities would provide one or two zones in which safe access to medical marijuana could exist.

All the initiatives failed.  Imperial Beach’s Yes on S campaign even had politicians against them who launched a No on S campaign using the San Diego DA’s very narrow interpretation of state law to spread mistruths that dispensaries are illegal as well as other propaganda.

Another local medical marijuana attorney who was present at oral arguments, Jessica McElfresh said “By stating clearly the legal requirements to operate a medical cannabis collective and to receive an affirmative defense in criminal court for doing so, the ruling in People v. Jackson is a watershed not only for medical cannabis patients in San Diego, but also for them statewide.  However, the ruling is particularly welcome in San Diego, not only because the case originated here, but also because the San Diego District Attorney’s Office has aggressively prosecuted medical marijuana patients according to its own narrow interpretation of the law.  Hopefully, that will now cease.”

With established elements of defense for dispensary operators now in place from the appellate ruling, one could argue we have statewide legal guidelines for how dispensaries should operate to be entitled to their defense should they need one.

If the DA then chooses to raid and prosecute a dispensary operator who has those defense elements in place and can readily avail the investigators of them, will the DA choose to prosecute anyway, thereby making the procedure the punishment and clogging the courts with costly prosecutions doomed to failure?

What the DA’s office asserts on the Jackson decision is not very encouraging: “We continue to embrace our interpretation that the Legislature limited the protected activity to the cultivation of marijuana for medical purposes and not large-scale distribution of marijuana,” said Steve Walker, a spokesman for the office.

In response to Walker’s statement, San Diego criminal defense attorney, Bahar Ansari, had this to say: “It appears that the DA’s office plans to ignore the Jackson court’s ruling and continue its flagrant disregard for the will of California voters, the medical marijuana laws as enacted by our state legislature, and the rulings of our state courts of appeal.  In doing so, the office offends our common sense notions of justice and fairness. Just as importantly, in my opinion, it violates certain Rules of Professional Responsibility imposed by the State Bar of California on all prosecutors, namely to seek the truth and ensure that justice is done.”

An attorney and medical marijuana advocate who watches from northern California, Mark Wuerfel said “The Jackson decision is instructive in both the manner in which qualified patients must act to conform to the requirements of State law to be entitled to immunity from prosecution; and also to underscore the manner in which prosecutors, such as those at the San Diego District Attorney’s Office, maliciously and wrongfully prosecute qualified patients at the taxpayers’ expense to pursue their misguided personal agendas to engage in a county-wide vendetta that unequivocally violates the legal and civil rights of such qualified medical marijuana patients.”

Stephen Whitburn, who was a member of the San Diego Medical Marijuana Task Force was asked for his thoughts and had this to say, “A key problem is that the state laws and guidance on medical marijuana are ambiguous enough that different interests can interpret them in different ways. Our state government must do a better job of spelling out what is allowed under state law. In the meantime, I think it would be sensible for law enforcement to take a moderate stance, prosecuting clear and egregious violations of state medical marijuana laws but refraining from prosecuting the types of cases that are increasingly being rejected by juries and the courts. The real losers in this ongoing tug-of-war are cancer, AIDS and other patients who truly find relief from medical marijuana but whose access to it is impeded by those prosecutors who choose to impose their own very restrictive interpretation of what the state law allows.”

With guidelines in place through People v Jackson as well as several others decisions, it will be interesting to see how the DA will attempt to make criminals out of patients now. As for zoning, how long can cities refuse to open zones?   And, if they refuse to open zones forcing dispensaries to operate outside of zoning, will their very operation be a criminal act or, with the addition of the Jackson ruling to the plethora of case law supporting rights of patients and dispensaries, will operating a dispensary now become a civil issue?

Regardless, The Jackson’s decision puts medical marijuana patients and their providers just that much closer to being free from unjustified arrest and prosecution.

All members of the community who weighed in with their thoughts thanked Jovan Jackson for fighting.

Larry Sweet, another Medical Marijuana Task Force Member was solemn when he said, “It is by design that we may find compassion in the Appeals process when the lower courts are ruled by personal and political interests. I never doubted Jovan or his courage.”

Further information:

Landmark appellate court ruling:
Jackson appeal brief filed by ASA:
Attorney General reply brief:
ASA reply brief:


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