Yesterday saw a major development in California medical marijuana law, with the acquittal of Jovan Jackson, the operator of a medical marijuana collective (more here and here.) The case was the first big test of the San Diego County District Attorney’s narrow reading of what constitutes a collective or cooperative under California state law and may have major implications for deliberations on the regulation of medical marijuana dispensaries in Los Angeles and San Diego. (As a disclosure, I am currently serving as Chair of the City of San Diego’s Medical Marijuana Task Force.)
The issue is a somewhat complicated one (and one that may hold some lessons for the do’s and dont’s legislative drafting.) I may blog in more detail about the law before my guest-blogging stint here is done. But, in a nutshell, the California legislature passed a law in 2003 in an effort to clarify the scope and application of the State’s landmark 1996 medical marijuana ballot initiative. The law provides, among other things, that medical marijuana patients who “collectively or cooperatively . . . cultivate marijuana for medical purposes shall not solely on the basis of that fact be subject to” a variety of state criminal laws pertaining to marijuana (including possession for sale, maintaining a place for purposes of sale, etc.).
Since the law’s passage, most folks across the state (including prosecutors) have interpreted it to mean that medical marijuana collectives and cooperatives that operate as a store-front (much like a, say, a food co-op might) are legal. Accordingly, over three dozen cities and counties across the state have enacted land use ordinances to regulate these entities and many cities and counties actively support their existence (for some background, see here, here, and here.) Within the past year or so, however, a handful of prosecutors and other local government officials (mainly in San Diego and Los Angeles) have begun to push a much more narrow view of the law, arguing that collectives cannot sell marijuana to their members. These officials have argued that collectives and cooperatives are only legal if they operate, in essence, like a commune with each member contributing labor to cultivating medical marijuana. There are a number of problems for this view, including Guidelines from the State Attorney General (which state that storefront collectives and cooperatives are lawful if they comply with other legal requirements.) In addition, local officials who have taken this view have steadfastly refused to provide a detailed account of what they think the law does allow other than to say that storefronts are illegal and that some sort of labor on the part of members must be involved. Beyond that, however, they say that the line is “rather blurred” as to what the law allows.
While most observers view the narrow “commune” interpretation of the law as quite a stretch, California courts have not addressed the issue and so it technically remains an open question. As a result, a great deal of confusion has developed over the past year or so in Los Angeles and San Diego counties about just what is necessary for a collective or cooperative to be legal under state law. The Jackson case was the first (to my knowledge) to really put this new narrow interpretation of the law to the test. It involved the prosecution of a medical marijuana patient who managed a collective with over 1,500 members. In essence, the case boiled down to whether or not a collective that operates as a store front like a food co-op constitutes a local medical marijuana collective under state law. Not only did the jury acquit Mr. Jackson, but the foreperson directly questioned the prosecution’s view of the law during a press conference after the verdict, saying that “the prosecution gave his narrow definition during the closing arguments but there was nothing in the law that backed that up.” (the quoted comment is at about 1:30 into the video.)
While one jury verdict certainly does not provide an authoritative resolution of the underlying question of law here, it may nevertheless make local officials think twice about continuing to push unusually narrow interpretations of the law. After all, why pursue expensive investigations and prosecutions that are already politically unpopular if they are only going to result in an acquittal? Given the overwhelming consensus that state law does permit these entities, hopefully the hold-outs will come around to that view as well. I also hope that the hold-outs will decide to join in the process of regulating collectives and cooperates to ensure that they operate in safe and sensible manner.