Other Voices: Medical marijuana laws must be upheld

8/23/2008


By By Stephen Munkelt,


Sheriff Keith Royal and the Narcotics Task Force do not like the medical marijuana laws. As confirmed "drug warriors," they believe in the federal approach to pot: Criminalize everything and prevent research into the medical benefits of marijuana use.

As recently as six months ago, the sheriff told me he was expecting the state Supreme Court to find the medical marijuana laws unconstitutional - even though the court approved the Compassionate Use Act in 2002 (in People v. Mower) and the Medical Marijuana Program act in 2006 (in People v. Wright). Not to mention that over 60 percent of voters approved the Compassionate Use initiative in 1996.

Of course, people in law enforcement are entitled to have opinions about the law. But they are sworn to uphold the law, and where there is a strong bias, they might not apply or enforce the law as intended.

In the case of the cultivation of medical marijuana, this leads to the destruction of legally grown and possessed marijuana, as the task force follows a "shoot first, ask questions later" approach.

The front-page article in The Union on Aug. 8 demonstrates the problem. Plants were seized from gardens where medical recommendations were posted, while the "investigation is continuing" into whether the cultivation was legal, or not.

If it is ultimately shown that the plants were legally grown under valid medical authorization, the sheriff will have the satisfaction of having destroyed the property of an unspecified number of patients. There is no practical method of compensating the patients for that violation of their legal rights.

Even more disruptive and damaging are the arrests and felony charges filed against medical marijuana patients. People sit in jail or have to post bond, have to pay for attorneys, and make time for court. If they prove a medical defense to the charges, in court or at trial, they do not get a conviction on their record, but they aren't reimbursed for their lost money and time.

The police bias is reflected in other ways in the same article. The sheriff and task force said, "growing for others is a gray area" and deny medical defenses for a "commercial operation." But the Medical Marijuana Program authorizes "cooperative" cultivation and possession by groups of authorized patients. It also legalizes sales of marijuana between patients or through "dispensaries." So "commercial" is OK under the law, but not with law enforcement.

Tragically, local authorities seem to be getting more aggressive about marijuana enforcement, just as the law becomes more protective of medical use and distribution. Innocent parties will continue to suffer, at least until the police learn to accept the law. Even when they don't like it.

In my practice, I often advise patients on the requirements for legitimate cultivation and use of marijuana. They are trying to comply with the law, in a way that will prevent seizure of the plants, arrest and trial.

But in the present environment, I have to warn them there will always be some risk that the Narcotics Task Force will pull up the plants and make an arrest before confirming the legal status of their activities. It is like having your car impounded and crushed by a wrecker because an officer thinks the registration is expired - before you even have time to show up with proof of registration.

So, when you see the sheriff's press release on some marijuana seizure in The Union, remember that he is trying to sell his point of view - and it may not be the law.


Stephen Munkelt is a lawyer who lives in Nevada County.


http://www.theunion.com/article/20080823/OPINION/2770/-1/RSS02


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