[420 Girl]

The California Supreme Court's ruling on Thursday shooting down restrictions on medical marijuana possession is just the latest twist in a murky and constantly changing legal landscape.

The unanimous ruling in the People V. Patrick Kelly, while not unexpected, has drawn a variety of reactions on the North Coast. Prosecutors and law enforcement agencies worry it will make marijuana laws even more of a nightmare to enforce, some local municipalities wonder what it will mean for their ordinances, local defense attorneys say it will be a boon for defending medical marijuana cases and patient advocates applauded the ruling, dubbing it a strong and welcome rebuke of the government's attempts to step between a patient and his or her doctor.

Meanwhile, the decision caused Humboldt County District Attorney Paul Gallegos to reflect on 15 years of evolution of California's medical marijuana laws, and what it's done to his county.

As the dust settles from Thursday's ruling, one thing seems clear: Arcata is at the forefront of working within the law to try to rein in the ancillary impacts of medical marijuana and find common ground between compassionate use and a cultivation free-for-all.

If there anything resembling a universal opinion on the North Coast, it seems to be that compassionate use is not the problem with medical marijuana.

”From my standpoint in law enforcement, I'm way past whether medical marijuana should be legal or not -- that's the people's decision and a medical decision, and we're good with that,” said Humboldt County Sheriff Gary Philp. “But, we do worry about the quantities and the grow houses and the abuses. That's where we've had home invasions, murders and shootings in neighborhoods. It's a serious concern for myself and law enforcement in general because it's an impact on neighborhoods.”
A DA's take

If you ask Humboldt County District Attorney Paul Gallegos about the impacts of Proposition 215, he will tell you it has helped change the county from a culture of complicity to one of hypocrisy.

Prior to 1996's passage of Proposition 215 -- the Compassionate Use Act that decriminalized marijuana for medical use in California -- marijuana cultivation and use were prevalent in Humboldt County, Gallegos said. It wasn't visible, but it was grown widely in the county's rural stretches. Proceeds from the crop spawned fronts, local businesses kept afloat simply because they laundered marijuana money. Legitimate business also benefited, Gallegos said, pointing to the boom in new truck sales at the county's car dealerships every fall, coinciding with harvest season.

Hardware supply stores benefited from selling massive water tanks and irrigation equipment. It was clear what the stuff was being used for, just as it was clear where the cash used to buy the new 4X4 trucks came from, Gallegos said, but people looked the other way.

”It was against the law, but it was also part of our society,” he said. “There was clearly illegal activity that a large part of our society was complicit in. We didn't say, 'no, we know what's going on,' and we didn't refuse the business.”

Proposition 215 changed some of that, to an extent, Gallegos said, mostly by providing a legal cover for growers to move from the backwoods areas of the county into more urban areas.

”Because it was just illegal, there was no cover (prior to 215) -- it had to be remote and rural,” he said. “What 215 did was move it into our neighborhoods. It has reduced homicides associated with it, but it has brought some of the violence into neighborhoods. It's more visible because it's here, it's front and center and it's in our neighborhoods.”

While few noticed when there was a shoot-out in some remote area near Petrolia, everyone takes note when one occurs in broad daylight on a quiet McKinleyville street, as happened on Easter Sunday of last year in an alleged marijuana robbery gone wrong.

But, just as Proposition 215 gave criminal commercial cultivators a guise to move into town, it also handcuffed law enforcement's ability to arrest and prosecute offenders, by making it difficult to distinguish between patient and criminal.

Senate Bill 420, passed by the Legislature in 2003, was reported to seek common ground -- to respect and protect patients' rights to their medication while giving law enforcement clear guidelines by which to determine if someone was acting within the law or abusing it.

The law

Contrary to popular belief, Proposition 215 didn't exactly legalize marijuana for medical use. What it did was give patients with a written or oral recommendation from their doctor a defense against criminal marijuana possession and cultivation charges.

”(It) does not grant immunity from arrest for those crimes, however,” the Kelly ruling states. “So long as authorities have probable cause to believe that possession or cultivation has occurred, law enforcement officers may arrest a person from either crime regardless of the arrestee's having a physician's recommendation or approval.”

SB 420 changed that to some extent, introducing clear guidelines and a voluntary state-issued identification card program to shield patients from arrest on the one hand, and to give law enforcement the green light to go after those believed to be abusing the Compassionate Use Act for profit.

However, the bill failed to provide absolute clarity. Patients, afraid to have their names listed in government records, proved leery of the identification card program and only 38,000 IDs have been issued by the state, according to the Los Angeles Times.

The limits outlined in the bill -- eight ounces of dried marijuana and the cultivation of no more than six mature or 12 immature plants per qualified patient -- also proved somewhat nebulous, as the bill contained a provision stating that a patient could possess more with a “doctor's recommendation” stating that the patient's medical needs exceeded the state limits.

A large part of the complexity of the issue is that marijuana remains classified federally as a Schedule 1 controlled substance -- the same designation given to ******, ecstasy and *** -- meaning doctors are federally prohibited from prescribing it. So, unlike virtually every other controlled medication, doctors in California simply make nebulous recommendations for medical marijuana. In fact, the California Medical Association specifically advises doctors not to specify approved dosages or quantities for patients, citing the federal government's stance prohibiting doctors from prescribing the drug.

The bill also allowed local governments to set higher limits in their jurisdictions, which many did.

In his prosecution guidelines for Humboldt County, Gallegos set limitations on grow space that would allow a patient to cultivate and use up to three pounds of marijuana per year.

But, as was confirmed in Thursday's ruling, the Legislature overstepped its bounds with the bill by essentially changing a voter-approved amendment to the constitution, which can only be done by the voters themselves. The ruling does not, however, nullify the entirety of the bill, just the part placing limits on what patients can possess and cultivate.

”Certainly, it doesn't do anything to make the law less confusing,” Philp said. “It makes it more confusing. It's like putting a freeway in and not setting a speed limit on it.”

Municipalities react

Thursday's court decision comes just as Humboldt County and the city of Eureka were working to enact new medical marijuana ordinances, and it will likely spur them down the path Arcata chose -- making marijuana cultivation a land use issue.

While municipalities throughout the state scrambled in the wake of the Kelly ruling, Arcata sat, ahead of the curve, having anticipated the ruling and crafted regulations that wouldn't be affected by the case.

”It was really the whole idea that we took in the beginning, which was 'Don't base it upon 215 standards,'” said Larry Oetker, the city's community development director. “We base it on land use standards, and that way all of the whim of the law enforcement and all of this other stuff -- it wouldn't affect our standards at all.”

The city's guidelines don't place any quantitative limits on possession or cultivation, but rather restrict cultivation space to 50 feet wide and 10 feet in height for grows in residential neighborhoods. Oetker said since the ordinance does not regulate medical marijuana possession or transportation, but rather health and safety codes, it will not be affected by the ruling.

”The whole basis of land use standards is we don't say that you can't do it... it is to say where is the appropriate place you can do it,” Oetker said. “There's nothing in 215 that said you have to grow marijuana in your house. As long as people have a legal place to get it, then we can regulate how it's set up.”

The city of Eureka, which was about to embark on new medical marijuana dispensary land use codes, is unclear what direction it will take next.

Council members Jeff Leonard and Linda Atkins are leading the city's efforts to create medical marijuana guidelines, and hope to gather public input on the matter at a meeting Tuesday. Leonard said it is unclear how the ruling may affect the city's draft ordinance.

At the county level, 1st District Supervisor Jimmy Smith said more analysis is required.

”We are not jumping ahead of anything here. We just want to be very careful and cautious,” he said, adding that the county has been aware of the Kelly case and is looking at the issue through a land-use lens similar to Arcata's. “It's going to take the county counsel's office a few more days to really go in depth -- we don't want to waste time or money.”

Third District Supervisor Mark Lovelace, the co-chair of a newly formed California State Association of Counties work group on the issue, said the challenge for the county lies in trying to provide reasonable protection for neighborhoods while still upholding safe access for patients. Thursday's ruling, Lovelace said, only underscores the county's need to improve and retool its ordinance.

Lovelace cautioned these discussions could be further complicated by a handful of marijuana legalization initiatives working their way toward the state's November ballot.

”We have to keep an eye towards where this is going next, and make sure we're looking at the very real likelihood that we will be looking at full legalization in the near future,” Lovelace said.

Targeting abusers

The Kelly decision unquestionably makes it more difficult to prosecute the abusers of Proposition 215, the healthy, able-bodied folks who are making money hand over fist growing something more valuable than gold, Gallegos said.

The only way to convince a jury that someone is abusing their 215 recommendation, Gallegos said, is to get their doctor to testify that the defendant is possessing or cultivating more than necessitated by their medical needs. Not only will that likely be difficult to do, Gallegos said, but it also leaves prosecutors in a position where it will be difficult to determine if they have a case until it gets to trial or a preliminary hearing, which he said will make prosecuting marijuana cases very labor intensive and, consequently, very expensive.

Because law enforcement agencies can arrest a suspect on probable cause and proposition 215 only allows for an affirmative defense, Gallegos said the Kelly decision also has the potential to cause a divide between officers and prosecutors.

Officers can make marijuana arrests all day long, Gallegos said, but district attorneys might not be able to prosecute the cases, causing a situation that's potentially rife with hard feelings and lawsuits.

As an example, Gallegos said, if a grower with a 215 recommendation is arrested for cultivation and officers seize his or her plants, but the district attorney's office decides it doesn't have a case it can bring to a jury, the grower may be able to sue the arresting agency for the value of the uprooted plants.

”That's a heck of a place to put us in,” Gallegos said, adding that he will always err on the side of caution so as not to jail and prosecute medical marijuana patients acting within the law. “If we don't prosecute those cases, it exposes law enforcement to (those lawsuits). It's crazy...

”You've made enforcement of marijuana laws very, very difficult and the choices that go along with it very, very difficult,” Gallegos continued. “You've also put too much arbitrary discretion in the hands of law enforcement and the DA's office.”

Philp said his deputies and detectives will largely continue working as they have: letting legitimate medical marijuana patients be and targeting commercial, for-profit grows, and working with the district attorney's office to ensure the department's arrests are prosecutable.

”It behooves us in the first place to discuss these cases with the district attorney's office to make sure we're clear on what we're looking at before we proceed,” he said. “It's always been a kind of murky situation, but (the Kelly ruling) just hasn't really done anything to help it.”

While virtually everyone in law enforcement would like more clarity from the state, Gallegos warned that legalization without regulation -- as is being proposed in some of the state initiatives -- would be a “catastrophe.”

However, he said the current situation is untenable. It keeps marijuana prices artificially high, bringing both abuse of the Compassionate Use Act and the criminal elements that come along with it. Legalization would bring the prices down, Gallegos said.

”Once the price goes down, guess what? Where's the incentive for someone to come up here with a gun? It's gone,” he said, quickly adding that legalization would bring big marketing campaigns, many likely targeted at young people, for a product for which the long-term health impacts have not been appropriately studied.

Legalization would also bring a host of issues for Humboldt County, he said.

”The problem Humboldt County will have if marijuana is legalized is the illegal money that comes in associated with it as well as the money that comes in to detect and eradicate and prosecute these cases is gone,” he said. “I don't think that's a bad thing, but I think it will be a tough thing.”

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