STATE SUPREME COURT DERELICT IN 215 INTERPRETATION, AND TODAY'S APD ISN'T
MUCH HELP

The California Supreme Court's initial Proposition 215 ruling (People v
Mower, 7/18/02) finally and starkly exposes the immense and illegal
political campaign waged against implementation of this landmark ballot
initiative.

No new legal mechanisms were found to be needed, or were created, in order
to correct fundamental legal mistakes that were discovered in the example
case used by the court to illustrate the most basic issue: whether
P215-qualified patients possess a meaningful form of legal immunity that
(according to the law's own words) "ensures" their right of access to
cannabis consistent with their physician's recommendation/approval.

Apparently for the sake of establishing a unanimous opinion, the court
stumbles over adequately clarifying the issue of precisely what form of
limited immunity from criminal process is available through P215 (now
section 11362.5 of the state health and safety code of law). This failure
should not obscure but rather, through the basic premises unanimously
grasped, emphasize the key fact that freedom from arrest and seizure is
legally appropriate and usually necessary for P215-qualified patients.

The court also too broadly presumes the practical utility of its otherwise
apt analogy between medicinal cannabis and prescription drugs. Seizing and
sequestering growing plants and/or perishable supplies of cannabis, unlike
conventional pharmaceuticals, clearly and abruptly confounds the primary
purpose of sec. 11362.5, "ensur[ing]" patient access to cannabis."

These two failures are capable of combining to offer obstructionists of
implementation of sec. 11362.5 with some lingering loophole tools to
continue activities which are neither legal nor in good faith with legality.
The court failed to properly define the landscape for law enforcement.

The court's opinion overturns a state trial court process forcing a
P215-qualified patient to demonstrate his innocence (of possessing too much
cannabis -- defendant's expert says cultivation would likely yield 4.5
pounds / state says 31 to 62 pounds) in a sheer debate with the state, using
a preponderance of evidence standard of proof, when (quite obviously) proof
of guilt beyond a reasonable doubt being presented by the state has --
always been -- the proper, accepted legal standard.

Corruption of state legal processes, to practically extinguish bulwark
rights of such defendants regarding their use of the "proof beyond a
reasonable doubt" standard of evidence in a criminal prosecution, is thus
the deadly disease for which the court seeks cure.

The state's prosecution in People v Mower reveals a rude resistance to
implementation of this law, to the degree of engineering subversion of basic
premises of legal process, in effect reducing defendants in section 11362.5
contexts to sub-citizens, due only a rugged parity of clumsy combat with the
state in the great coliseum of the law.

As the court bluntly realized, "[e]ven though defendant failed to raise this
question in the Court of Appeal, it is of general importance for all future
cases involving the 11362.5(d) defense. [A]nd of substantial moment, the
pattern jury instruction CALJIC No. 12.24 (1999 rev.) (6th ed. 1996) states
that the defendant bears the burden of proof as to the underlying facts by a
preponderance of the evidence. The general importance of the question
counsels us to address it. [T]he defendant should be required merely to
raise a reasonable doubt as to those facts rather than to prove them by a
preponderance of the evidence."

Astonishingly, the official legal manual being used by the state's justice
system during the previous six long years demands that P215 defendants meet
a wrong -- and higher -- standard of proof in court. The entire point of the
case of Mower is to allow the court an opportunity to make it crystal clear
that there is no legal authority for forcing P215 patients (with limited
immunity) to fight evidenciary preponderance contests with the state.

Criminal guilt in the law has traditionally been established by proof beyond
a reasonable doubt, yet P215 patients have been denied such primary rights
of defendants, and this situation has been overlooked for all these years.
Respect for law and legal authority suffers in equivalent measure.

The California Supreme Court has unanimously -- but simply -- stated what
the law is, made the ruling it could not avoid; but it is also provoking,
without clearly resolving, the issue of arrest and seizure. It declares that
medicinal cannabis is legally no different than conventional prescription
drugs, and it quarrels with defendant Mower about what he called in his
legal papers: "complete immunity." The court didn't like the sound of that,
so it was intent to identify and distinguish away his notion. Unfortunately,
to do so, it contradicts itself in a murky manner.

According to the court, Mower's claim of "complete immunity, [was] not only
from prosecution, but even from arrest... [Thus, his convictions] required
reversal because of the alleged failure by law enforcement officers to
conduct an adequate investigation of his status as a qualified patient or
primary caregiver before proceeding to effect an arrest."

"To be sure, (the court continues) law enforcement officers must have
probable cause before they lawfully may arrest a person for any crime. [ ]
Probable cause depends on all of the surrounding facts, including those that
reveal a person's status as a qualified patient of qualified primary
caregiver under section 11362.5(d). [But t]he requirement that law
enforcement officers have probable cause for an arrest does not mean that
section 11362.5(d) must be interpreted to grant such persons immunity from
arrest."

And yet, (the court continues) "'reasonable or probable cause' means such a
state of facts as would lead a man of ordinary caution or prudence to
believe, and conscientiously entertain a strong suspicion of the guilt of
the accused." Relevant "guilt" would almost always amount to any law
enforcement officer's over-presumptive suspicion that at least some of the
cannabis was not being used medicinally. But evidence of crime, says the
court, dissolves by just raising a reasonable doubt as to the facts about
it.

Once arrested/seized and charged, "[t]o prevail, a defendant must show that,
in light of the evidence presented to the grand jury of magistrate, he or
she was indicted or committed without reasonable or probable cause to
believe that he or she was guilty of possession or cultivation of marijuana
in view of his or her status as a qualified patient or primary caregiver."

P215 defendants would accomplish this by presenting enough evidence to raise
a reasonable doubt about law enforcement officers' supposedly "good faith"
determination of guilt. Evidence would usually amount to relevant
recommendations/approvals of physicians, and also perhaps expert testimony
regarding the extent of cannabis cultivation/possession -- precisely the
elements available for assessment/use by law enforcement officers. So, in
order to have "good faith belief" in crime being committed in such cases, to
have a "strong suspicion of guilt," law enforcement officers would
presumably have to overcome P215 patients' simply "raising a reasonable
doubt" about it.

This circuitous condition of legal process would seem to demand more
extensive attention and guidance by the court, for which unanimity was
apparently unavailable. Factually, medicinal cannabis cases are pretty
simple and uniform in nature. While legal concepts involved here are (in
this case, should have been) identically applicable in any context of
potential crime (police have "cauti[ous] and pruden[t], strong suspicion of
guilt, of which defendants are acquitted raising reasonable doubt about),
the utter simplicity of these medicinal cannabis situations argues for
better training and procedure leading to reasonable ("adequate")
investigations.

Rather, the court chose to emphasize the continuing (but actually legal?)
law enforcement abilities to arrest / seize, seemingly without "conduct[ing]
an adequate investigation of [a person's] status as a qualified patient or
primary caregiver." The court points to a phrase in the ballot language
involving continuing arrests "for marijuana offenses." But, the whole point
in this P215 context is determining what actually constitutes such an
"offense," that is incapable of being well extinguished by simply "raising a
reasonable doubt" as to the simple and relevant facts: physician approval
and an amount of cannabis that is not beyond a reasonable doubt of
sufficiency for the particular circumstances.

Mower was alleged by the state to be capable of producing -- 10 to 20 times
- -- what his own expert testified would be likely production. Good faith
implementation of P215 would seem to require that this law enforcement
expertise more adequately reflect reality. This very nonsense apparently
provoked a jury to convict Mower based on a preponderance basis of proof.
Yet the court failed to connect the hyperbolic notions of the state's
"experts," with those of the state's agents of arrest/seizure in the field.

If it did, it might have been gentler in its rendering of Mower's desire for
total immunity ("complete immunity"), and been more forthcoming with due
admonishment toward the general law enforcement community that has already
perpetrated the central hoax involved in this case. Mower was simply asking
for what is legally due, within the literal terms of P215.

Disturbing and disrupting the right and ability of qualified patients to
best realize the goals of this law, by means of the inadequate
investigations of relevant circumstances by law enforcement, rises to bad
faith and liability. These are the words that should have completed the cure
the court seeks to achieve.

What Does This Mean For Arcata?

What does this mean for Arcata? Arcata has adopted (3/98) an ordinance for
the purpose of implementing section 11362.5/P215. This ordinance contains
specific language directing municipal law enforcement to make reasonable
investigations of all claims of limited immunity in this regard, prior to
making any potential seizures/arrests.

Official policy for law enforcement within Arcata's jurisdiction is thus
more realistic and substantial than the court's confusing presentation of
affairs. Arcata possesses the discretionary authority under subsection
(b)(1)(c) of sec. 11362.5 to establish plans, exercise policies "to provide
for the safe and affordable distribution of [medicinal cannabis to all
patients in need]." This doesn't mean that the City itself would distribute,
but rather that its implementation plan best facilitates this "safe and
affordable distribution."

Arcata was the first community in the nation to implement a medicinal
cannabis initiative. Other jurisdictions in California have since followed
the model ordinance initially created in Arcata, adapting the concept to
suit particular interests. The pace of proliferation of such local
implementation plans has been slow, but steady. Many local jurisdictions are
in the midst of considering/establishing whatever policies they believe to
be most appropriate. Divisions within the state, political as well as
demographic, will continue to disallow any kind of realistic or practical
statewide plan of implementation. California is a large area, with divergent
cultural views.

Arcata has its own jurisdictional identity, determining harmonious local
applications for state law. Prior to P215, the City could not have lawfully
adopted an ordinance relating to medicinal cannabis, because it would have
conflicted with state law. Sec. 11362.5 encourages implementation efforts
consistent with its own primary purposes. Passage of such local
implementation law obviously serves these purposes.

Local law implementing sec. 11362.5 interacts with relevant, existing state
law in a way that broadens the scope of immunity provided by law. Code
sections relating to "distribution," such as ones prohibiting maintenance of
a place of distribution, ("affordable") sales, and transportation have legal
exceptions clauses ("except as otherwise provided by law," etc.) within them
that provide for otherwise lawful (usually police) activities, (and) now --
activities providing "safe and affordable distribution." Arcata's ordinance
possesses specific language addressing these various relevant areas,
recognizing that such activities are consistent with lawful implementation.

Arcata's ordinance is thus the pioneering local implementation plan that
attempts to realize the goal of "safe and affordable distribution."
Fostering the creation of a 'white market' for medicinal cannabis, this plan
is both lawful and essential for realizing the purposes of the law. Former
Police Chief Mel Brown followed these municipal policies, even initiating
his own program of creating identification cards for patients who desired
them for their own confidence and convenience.

Arcata police are instructed to provide the same reasonable process of
investigation for any and all claims of such limited immunity, regardless of
these helpful, convenient cards. But this card program demonstrated the
legal change in a very powerful way. Chief Brown said that he wanted to
resolve such claims of immunity "on the streetcorners (etc.) rather than in
the courts." He acted as a liaison with the 'cannabis clubs' active at that
time, and was helpful toward medicinal cannabis distribution programs
following the language of the ordinance. He well understood his important
role and responsibilities and well served the city and its new policy.

The present Police Chief, Chris Gallagher, has yet to join these efforts.
Yet, Arcata is a patient and nourishing environment, moving slowly at times
to best facilitate its own usually laudable goals and interests. Chief
Gallagher has, in his short tenure, looked to the (now lame duck) district
attorney for relevant policy direction, apparently issuing a recent,
internal police memo along these lines (involving a supposed 10 plant limit)
that is in direct conflict with Arcata's implementation policy. Arcata
declined to set any ceiling level for cultivation, literally declaring "all"
cultivation consistent with section 11362.5 as lawful. Interestingly, the
chief has been deferring to the district attorney on such policy, despite
the district attorney's own explicit recognition of the independence of
Arcata's jurisdiction.

In comments to the press, the chief doesn't seem to comprehend that the
City's ordinance does more than simply supply sheer windowdressing or
cheerleading for P215. He seems to consider it more of a proclamation and
less of a law. Despite occasional signs to the contrary, the City Council
seems to be depending on the chief to finally come into form upon these
matters, on his own, as he evolves into his role. However, the upcoming
council election process will be marking an end to that subtle season, by
raising this among other police issues.

Chief Gallagher should immediately re-activate former Chief Mel Brown's
identification card program, by so recognizing qualified patients who desire
such cards, and yet not keeping any records or files of the relevant
information, thus protecting the privacy and rights of qualified patients.
He should also retract any memos that conflict with Arcata's implementation
ordinance, and help develop and implement various policies (such as
protecting qualified patients' proper use of cannabis within public zones).

He should also ensure that all members of municipal law enforcement are
thoroughly familiar with the policies represented within Arcata's ordinance.
This must include any occasions of countywide law enforcement activity,
since Arcata maintains its own jurisdictional integrity along these lines.
The county has been considering adopting its own ordinance, primarily based
on Arcata's law, but these processes have not yet produced such policy.
Perhaps as a result of the ongoing 5th District Supervisorial race,
political power may exist to finally adopt a county ordinance. The new,
incoming district attorney may also help develop such a consequence.

To achieve unanimity, the California Supreme Court may have been a little
clumsy with its articulation of this law, and been more than a little tardy
with correcting startling abuse in its legal processes. But the air is now
clearing of obstructionist gibberish, setting the stage for the next phase
of broader implementation. Arcata has set the model standard for
implementation, quietly and without major controversy. This leadership
should continue in pragmatic fashion, through activity within statewide
policy channels, for the benefit of local communities across the state.