State Supreme Court Mower Ruling Protects Prop. 215 Patients

But Arrests Continue; Victors Head to Trial in Riverside; Patients Sue for violation of rights; Chavez Returned to Prison (Cal NORML Newsletter, Oct. 2002)

July 18th, 2002. In a unanimous ruling, the California Supreme Court granted medical marijuana patients powerful legal protection against state prosecution for possession and cultivation of marijuana.

The court ruled that Prop. 215 is more than just a criminal defense but also provides qualified immunity from prosecution, and that defendants must be found guilty "beyond a reasonable doubt," not merely by "preponderance of evidence," a weaker standard that had previously been used by the courts.

The court overturned the conviction of Myron Mower, a severely ill patient who had been found guilty of marijuana cultivation by a Tuolumne County jury on the basis of "preponderance of evidence." An appellate court had upheld Mower’s conviction, ruling among other things that Prop. 215 was only an "affirmative defense" from criminal charges.

The Supreme Court ruled that patients should be protected from unnecessary prosecution. In powerful language, it delcared that "possession and cultivation of marijuana is no more criminal - so long as its conditions are satisfied - than the possession and acquisition of any prescription drug with a doctor’s prescription."

The court established a two-step process for patients who are arrested. First, they are entitled to a pretrial hearing, where they can have their cases dismissed if they show a "preponderance of evidence" that they are legal patients.

Afterwards, if they are brought to trial, they need only raise a "reasonable doubt" to prove their innocence.

Medical marijuana advocates hailed the ruling. "People who medicate with marijuana are not second-class patients," declared Mower’s attorney, Gerald Uelmen.

" What this decision does is finally provide relief for the common patient in the community," said attorney J. David Nick, who filed an amicus brief for Mower on behalf of California NORML.

Attorney General Bill Lockyer, whose office prosecuted the case, applauded the decision, saying that it "strikes an appropriate balance in helping to ensure that truly needy patients whose doctors have recommended medical marijuana to alleviate pain and suffering related to serious illnesses will have access to this medicine under California law."

The Mower decision is expected to result in fewer prosecutions and convictions of medical marijuana patients, as well as some reversals of outstanding convictions. The first beneficiary was Myron Mower himself, whose charges were dropped by the Tuolumne County D.A.

However, some advocates worry that hostile local narcotics agents may be more inclined to turn suspects over to the feds because of Mower. Observers in Sonoma County and elsewhere believe that local narcotics deputies have been colluding with the feds in the recent rash of DEA raids against medical marijuana growers.

While Mower strengthens the hands of patients who have been arrested, it does little to protect them from arrest in the first place, since police can still charge them for improper medical documentation or excessive quantities of marijuana.

Victors face trial in Riverside

A critical issue left unresolved by Mower is how much marijuana patients may cultivate or possess. In one of the first post-Mower trials in the state, patients Martin and LaVonne Victor of Temecula were denied a pre-trial dismissal by Judge James Warren on account of the fact that the amount of marijuana they had harvested (between 8 and 21 pounds) created a reasonable doubt as to whether they intended to sell it. The Victors say they had never grown marijuana before, and were told by police they could grow 15 plants. Having done so, they say the plants yielded more than expected. A defense fund has been established to cover the costs of their jury trial: Victors’ Legal Defense Fund, c/o MAPP, PO Box 739, Palm Springs CA 92263.

California NORML continues to hear reports from patients throughout the state who complain that local narcotics cops have wrongfully raided their gardens without filing criminal charges. Recent victims have included a number of well-known, legal Prop. 215 patients, such as Sister Somayah Kambui, who recently suffered yet another raid by Los Angeles police, despite having been acquitted in a high-profile case earlier this year. Although the D.A. declined to press charges, Somayah lost her garden and spent three uncomfortable days in jail without access to medicine.

Patients Sue for Violation of Rights

Some patients have filed civil suits for damages from wrongful raids. In Victorville, a judge has ordered a jury trial in a $300,000 civil suit by Gary and Anna Barrett against San Bernardino County and detective Mike Wirz. The Barretts are suing for damages incurred in a June, 1999 raid, when sheriff’s deputies raided their home and seized 57 marijuana plants, growing lights, and other property. The Barretts eventually pled guilty to cultivation, but a court granted them permission to continue growing up to 35 plants and ordered their property returned. The Barretts are suing for their lost pot as well as growing equipment that was destroyed after the raid.

Another patient cultivator, Jason Browne, has filed a complaint against Sonoma County sheriff’s deputies Steven Gossett and Andrea Salas for raiding and destroying his medical garden on July 18th, the same day as the Mower decision. Browne, who had been involved in efforts to establish legal medical gardens in Humboldt County, charges that the deputies falsified his record to obtain the search warrant, wrongly claiming that he had been arrested and charged for prior marijuana violations.

Prop. 215 patients are still waiting to win a civil court suit against law enforcement. In Shasta County, patient Richard Levin and his wife Kim lost a civil suit against the sheriff’s department. Richard Levin, who is 100% disabled by a back injury, was acquitted in a Prop. 215 cultivation case in 1999. He went on to sue for false arrest and imprisonment as well as mistreatment of his medical condition while he was in jail. However, the jury exonerated the county. The Levins’ attorney, William Simpich, ventured that the verdict might have been different had the judge allowed him to submit a copy of the Compassionate Use Act as evidence.

Prop. 215 advocates are hopeful that the Mower ruling will strengthen the hand of patients seeking to assert equal rights to marijuana as medicine. In a lawsuit with potentially broad implications, a Sacramento man is suing an employer for wrongful firing on account of medical use of marijuana. Gary Ross, who uses marijuana for a disabling back injury, filed a $100,000 lawsuit against RagingWire Telecommunications, Inc. Ross says that he turned down a higher paying job to work for RagingWire, but was fired after he reported his medical marijuana use prior to a drug test.

His attorney, Stewart Katz, contends that RagingWire’s management violated Ross’ civil and contractual rights.

Attorney Patrick C. Mullin defended the firing, saying, "RagingWire is committed to a drug-free work environment."

But Gerald Uelmen said that Katz has a good case in light of the Mower decision. "I can’t imagine an employer telling an employee that ‘I don’t want you taking your prescription, " he said.

Katz predicts that employers around the country will be looking to his client’s case as a precedent.

In Nevada County, patients are contesting the exclusion of medical marijuana users from the county’s DUI treatment program. The program, which is run by a private contractor, the Nevada County Council on Alcoholism, contends that medical use of marijuana is unacceptable on the grounds that (1) no proper dosages have been determined by the medical community; (2) marijuana is a "mood altering and addictive" drug; and (3) driving under the influence of marijuana is illegal.

Lynda Johnson, whose husband was denied treatment by the NCCA, protested that the program’s policy was "outdated and misinformed" in light of Prop 215. In response to several patient complaints, the state Department of Alcohol and Drug Programs wrote a letter to the NCCA saying it had determined that "medical marijuana shall be treated like any other prescribed medication," and that NCCA’s policy was without legal basis. Despite this ruling, the NCCA refused to change its policy. As a result, patients are calling on the Nevada County Board of Supervisors to revoke the NCCA’s contract.

Attorneys expect further litigation as public officials wrestle with the conflict between Mower and federal law. "There are all kinds of settings in which this conflict will continue to come up," predicts Uelmen.

Marvin Chavez Sent Back to Prison

The Mower decision was of no help to Prop. 215 patient Marvin Chavez, who was ordered back to state prison after a court turned down his sentencing appeal. Chavez, the founder of the Orange County Cannabis Cooperative, had been sentenced to six years in 1999 for selling small amounts of marijuana to two narcotics agents posing as patients, but was released on bail pending appeal in 2000. He was sentenced by Orange County Superior Court Judge Thomas Borris, who remains at large despite having wrecked his car while driving with twice the legal limit of alcohol in his system. Chavez has another 20 to 24 months left to serve.