by Jason Browne, The American Cultivator, April 19th, 2012
In the past year, an alarming legal argument has been put forward in California by opponents of medicinal cannabis, and it’s being used to deprive qualified individuals of the right to present a medical defense to criminal charges in our courts. They are attacking our right to form Associations (organizations made up of patients and their support networks). This is meant to deprive whole communities of safe access to cannabis. It is imperative that our movement, both here in California, as well as in Michigan, confront this legal strategy head on, in our criminal and civil courts.
Our opponents have completely misread the Medical Marijuana Program Act (a.k.a. SB420) and are asserting that California law allows qualified individuals (patients, their primary caregivers and personal assistants) to associate together merely for the purpose of cultivation, but not for the purposes of harvesting/processing, providing a space, transporting, storing, using, distributing or even possessing our cannabis!
Our ability to form collectives and cooperatives was directly addressed in Section 11362.775 of California’s Health and Safety Code, which states that “Qualified Individuals who associate within the State of California in order collectively or cooperatively to cultivate (cannabis) for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions…”. The only single fact that could reasonably be inferred from this Section of the Statute is that qualified individuals are protected from Sanctions that are based on their formation of such Associations. The operative words here are really that “qualified (individuals) who associate in the state of California…shall not solely on the basis of that fact be subjected to criminal sanctions.”
We have qualified immunity from seven entire statutes, yet only one of those protections (cultivation) is mentioned in the first part of the sentence, as a reason for qualified patients to associate together. The Compassionate Use Act (a.k.a. Proposition 215) protects qualified individuals from sanctions for the cultivation and possession of cannabis. It is absurd to suggest that our second cannabis law (the M.M.P.A.), listing seven statutes that qualified individuals are exempt from, must somehow be construed to only exempt us from criminal charges for cultivation, and not for the other listed statutes.
Another tactic used by prosecutors is to paint all cannabis farmers and distributors as “profiteers”. California laws include language regarding the reimbursement of “primary caregivers.” Prosecutors and law enforcement officers are mistakenly assuming that Collectives and Cooperatives do not already possess legal methods of seeking reimbursement for their operating expenses. In order to apply this logic, prosecutors have lately relied on some very strange hypothesis. Namely, that Collectives must be communist-run farms in order to qualify…or that the staffing of any non-profit or not-for-profit associations can never be paid positions…or that labor is not an operating expense, when applied to cannabis farms or dispensaries that operate in a collective or cooperative manner. All three of these assertions are patently absurd, yet they are being argued in courtrooms across California, as we speak.
Some of these cases are winding their way through the appeals court process. However, whenever local judges buy into this flawed legal argument, most qualified patients cannot afford to appeal their rulings and are effectively being denied their rights of Due Process. Additionally, many cities and counties have mistakenly defined associations to mean only “dispensaries”, and when applied to matters involving the licensing or zoning requirements of dispensaries, they are actually restricting patients’ rights to associate for any purposes whatsoever. Our rights to associate together, for any purposes (including the cultivation, procurement or uses of cannabis), must be acknowledged and protected. In California, we’re asking for the sponsors of the M.M.P.A. to release a new congressional letter of intent, to clarify these matters so that legitimate associations of qualified individuals can exercise their rights under our State laws, without running afoul of the criminal justice system. We must not allow our opponents to reverse the meaning of the laws that we have voted to change. We must not allow democracy to fail.