AG Brown “clarifies” muddy medical pot law
August 18, 2008
By DANIEL BLACKBURN
California’s top prosecutor has dribbled out the maiden set of formal guidelines to help law enforcement interpret and apply medical marijuana laws, and San Luis Obispo County Sheriff Pat Hedges says he has found in them an ounce of redemption.
Attorney General Edmund G. (Jerry) Brown’s final draft of his long-awaited rules for ensuring “the security and non-diversion of marijuana grown for medical use” is circulating among top state and local law enforcement officials. The new Justice Department guidelines are the first definitive words on the subject by a state attorney general, and are written nearly a dozen years after California voters approved Proposition 215, the “Compassionate Use Act.”
Passed in 1996 by California’s voters, the medical pot act decriminalized cultivation and use by patients on a physician’s recommendation. The act immediately conflicted with federal law; local law agencies were left to decipher the act and to formulate policies, resulting in a lack of consistency in enforcement between jurisdictions.
Brown’s 11-page pronouncement is intended to accomplish three objectives: to “ensure” that medical marijuana goes only to patients and caregivers; to help law enforcement do its job “uniformly”; and to “help patients and caregivers… cultivate, transport, possess, and use marijuana under California law.”
Hedges has become a flash point for the controversy surrounding uneven application of enforcement, even debuting in an international arena as a key player in the recent prosecution and conviction of Morro Bay pot dispensary owner Charles Lynch on federal drug charges. Television star and comedian Drew Carey told Lynch’s story in a sympathetic documentary on reason.tv.
It was Hedges who tipped federal DEA agents about Lynch’s dispensary; who ordered an undercover operation by his deputies which spanned a year and cost an indeterminate amount of money; who approved his deputies’ participation in the dispensary’s well-publicized raid by a cadre of well-armed law enforcement officers; and whose contribution to the prosecution’s case helped cement Lynch’s conviction.
He believes taxpayers benefited from his actions: “How do you place a value on a murder case investigation? You do it because it’s the right thing to do,” he said recently.
Hedges’ position is based on federal law, he has said repeatedly. Earlier this year, he told UncoveredSLO.com that he has “heard the argument that I am not required to enforce federal law. I would simply ask if I am required to comply with federal law. My opinion is that I am. I would hope that you would agree.”
The sheriff said the Lynch dispensary was not what voters had in mind, and was an abuse of the enabling act.
“I can’t just allow the law to be flaunted,” he said.
San Luis Obispo County has no other dispensaries. Neighboring Santa Barbara County, however, with a more empathetic sheriff in the saddle, has six operating facilities. Los Angeles County has hundreds.
His opinion is soundly based, Hedges said late last week. Stung by what he called “media misperceptions” about his enforcement of medical marijuana laws in this county, the sheriff has launched a low-key public relations campaign aimed at correcting those perceived mistaken slants. He and Rob Bryn, the department’s public information officer, are “briefing” reporters on the attorney general’s new guidelines.
Still feeling heat from some county residents’ reaction to his involvement in the surveillance, arrest and prosecution of Lynch, Hedges said he is relieved that Brown’s rules appear to address many heretofore unresolved issues.
One is the issue of “storefront dispensaries” of the kind Lynch ran until his arrest.
Brown wrote, “Although medical marijuana ‘dispensaries’ have been operating in California for years, dispensaries, as such, are not recognized under the law.” Individuals who operate dispensary establishments “that do not substantially comply with [the] guidelines… may be subject to arrest and prosecution under California law.” Cooperatives are allowed under the law, subject to established definition.
Hedges now points to that refined provision as ample reason for his enforcement efforts against Lynch.
Asked if he felt he had been damaged politically by the Lynch case, Hedges said, “I don’t know. Politicians sometimes take the most expedient means to reelection. But I will do what I believe in, regardless of the implications.”
The attorney general notes that “California did not ‘legalize’ medical marijuana, but instead exercised the state’s reserved powers to not punish certain marijuana offenses when a physician” has prescribed its use.
Several other significant clarifications are incorporated into the attorney general’s instructions, including one regarding possession quantities: “If a person has what appears to be valid medical marijuana documentation, but exceeds the applicable possession guidelines identified above, all marijuana may be seized.”
Ironically, a state court of appeal in May ruled that legislators acted unconstitutionally and erred when they capped the amount of pot a patient could possess. The court suggested patients should be able to possess any amount, and said lawmakers do not have authority to amend a voter-approved initiative. Brown, who advocates “controlled” medical marijuana use, told the Los Angeles Times recently that he will challenge the ruling.
Also defined are rules for the lawful return of confiscated marijuana to patients. Several city police departments in this county, as well as Hedges, have refused on occasion to do this, and local judges have always subsequently ruled in favor of patients. State law enforcement officers who handle controlled substances in the course of their official duties are specifically immune from liability, Brown said.