PROSECUTORS THREATEN POT DISPENSARIES

Last week, California Attorney General Jerry Brown issued guidelines
to regulate medical-marijuana-related activities in California.

Ostensibly, he issued these guidelines to clarify the boundaries
regarding patients, caregivers, collectives and law enforcement.
Ultimately, however, the vagueness of the guidelines will only
further motivate law enforcement and district attorneys throughout
the state who are sincerely trying to follow the laws.

In 1996, California voters passed Proposition 215, a referendum
allowing the state's residents to use medical marijuana when a
physician approved or recommended its use. Retail stores - commonly
known as dispensaries or cannabis clubs - cropped up throughout
California despite the fact the California statute did not
specifically authorize them.

For the next eight years, the California courts handed down a number
of decisions outlining the limits of the law. Despite the popularity
and proliferation of the medical stores, the state judiciary
indicated that operators of such businesses could not look to the
California law for protection. The 1996 version of the law only
recognized medical-marijuana patients and primary caregivers, defined
by the law as people who consistently assumed responsibility for
patients' health, welfare, or safety. While the definition seemed
vague enough to encompass a variety of roles, the courts made clear
that no one seemed to fit the definition of a caregiver. In fact,
none of the cases between 1996 and 2004 ever deemed a defendant a caregiver.

In 2004, the California Legislature attempted to clarify the law to
enhance the access of patients to medical marijuana. The additions to
the law allowed for qualified patients and primary caregivers to
collectively or cooperatively associate to cultivate marijuana, and
suggest that those who do so should be immune from criminal liability
for transportation, possession for sales, and sales of marijuana.

Again, however, the law failed to broaden the definition of primary
caregiver. A look at the legislative record reveals that legislators,
through SB 420, intended to put into place safe harbors by which
patients would be immunized from arrest if they grew less than a
certain number of plants. However, the statute ended up interpreting
these as limitations and ultimately SB 420 in many ways ended up
abridging rights instead of expanding them.

The question of whether a retail store dispensary would qualify as a
collective activity was left unresolved in the statute. However,
state prosecutors at their whims have continued to selectively
prosecute operators of dispensaries as well as those cultivating marijuana.

Last week's dispensary guidelines do indicate that storefront
dispensaries should not be prosecuted where their activities are not
for profit and that dispensaries may allow their members to cultivate
on behalf of the dispensary.

Despite the fact that the attorney general considers these
dispensary-related activities in California law, it is not a binding
authority on district attorneys whose power is still left unchecked.
In fact, the attorney general's opinion that hashish is considered
within the purview of the medical-marijuana statute is often
disregarded by prosecutors who claim that they need not follow an
attorney general opinion.

Finally, the guidelines do nothing to clear up the confusion
regarding the meaning of nonprofit, though they do echo the Medical
Marijuana Program Act's restriction of collective activities to those
conducted on a not-for-profit basis. However, this emphasis will do
nothing to explain what is meant by not-for-profit. Currently, police
claim that any amount of money seized is evidence of profit-making activities.

I have seen the lengths to which prosecutors will exploit the
vagueness of the law to prosecute people. The guidelines will do
nothing to curb the arbitrariness with which law enforcement and
prosecutors selectively enforce it.

Only when district attorney offices throughout the state start to
rein in out-of-control prosecutors, who put more resources into
finding loopholes in medical-marijuana defenses than into prosecuting
real crime, will anything change. Only then will patients' and
collective operators' rights be protected.