When Law ENFORCEMENT Doesn't Like the Law

By now it should be no secret that many local government officials — at least in Central California — do not believe that there is any way in which medical marijuana can be legally possessed, used, cultivated, transported, or sold anywhere in the United States. This specifically means that in any city or county in California that decides it shall not happen, it will not happen, regardless of what the law “on the books” states.

Since the law as written does allow medical marijuana to be legally possessed, used, cultivated, transported, or sold in California, the problem for such cities and counties has been how to get around the law. So far, though, that has proven to be a very small problem: the courts also disapprove of the law and have done everything possible to help the cities and counties subvert it, all the while pretending to uphold the utility of the law as to individual patients.

It doesn’t help, of course, that the medical marijuana laws, as written, are vague as to what they mean, intend, and actually do.

For example, the Compassionate Use Act, passed by the majority of voters in California in 1996, as codified in Health & Safety Code section 11362.5, subsection (b), states:

(1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:

(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illnesses for which marijuana provides relief.

(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.

(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.

In subsection (d) of Health and Safety Code section 11362.5, the voter-approved law goes on to state:

Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.

The state Legislature — who, among other things, decide what the legis, or laws, will be — followed this up in 2003 by passing the Medical Marijuana Program Act. The MMPA created an “identification card” system. In what became Health and Safety Code section 11362.71, subsection (e), the law states:

No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article, unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article.

Now, I have absolutely no idea what that means. Do you?

Let’s talk about the Compassionate Use Act first. I mean, does the law the voters passed intend that some class of people — let’s call them “patients” — is entitled to possess or cultivate marijuana for personal medical purposes?

If you read English, you might be inclined to think that it does. But ask almost any county supervisor, politician, or law enforcement officer and the answer is clear and unambiguous: It does not.

Just because the law says that there is a class of people who may legally possess and cultivate marijuana — just because the law says that it intends for them to be able to do so without being subject to criminal prosecution or sanction — that doesn’t mean the law was meant to allow anyone to possess or cultivate marijuana without being subject to criminal prosecution or sanction.

Uh-uh.

Besides, it just says that “Section 11357, relating to possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply.” Heck, how do we even know what code sections they’re talking about? It doesn’t say Health and Safety Code!  It also doesn’t say we can’t just change the numbers and write a new code making it illegal.

Yeah, yeah, we saw that part where it mentions that one of the purposes of the law is to ensure that some people “are not subject to criminal prosecution or sanction” for possessing or growing marijuana. Well, when we arrest people, we aren’t arresting them for that. We’re arresting them for not obeying the municipal code sections relating to zoning regulations.

The zoning regulations are clear: jump through all the hoops and someday it might be possible that the people mentioned in the Compassionate Use Act that the voters passed in 1996 could actually legally obtain marijuana.

If someone screws up and actually grants the proper business license, that is.

What about the Medical Marijuana Program Act? I mean, on the surface, it appears even broader in its protections — and some courts have interpreted it that way, too — because it says if there is a “valid identification card,” then “no person…shall be subject to arrest for possession, transportation, deliver, or cultivation.” It doesn’t seem to allow the possibility that a municipality — a city or county — can get around this simply by changing the number of the code section, or by allowing them to say “well, we’re not really arresting them for that; we’re arresting them for violating the zoning ordinance.”

The zoning ordinance, of course, makes it illegal to do the things which the state Legislature has already said are legal.

Can you say “pre-emption”?

But wait! The MMPA doesn’t actually say that having a valid identification card will prevent arrest, so long as “there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or….”

Well, if comments made by officers arresting clients of mine recently are accepted at face value, here’s how law enforcement gets around the law: if you have what appears to be a “valid identification card,” then “there is reasonable cause to believe that the…card has been obtained by means of fraud.”

I mean, otherwise, you wouldn’t have the card.

This is how it is because California is not a state regulated by laws. It is a state run by law enforcement.

When law enforcement doesn’t like a law, it simply doesn’t exist.