Will Bonnie Dumanis walk her talk on marijuana?

Guest post by Alex Kreit on Two Cathedrals

As you may have seen, Bonnie Dumanis issued a statement Wednesday “clarifying [her] position on medical marijuana.” The statement articulates a reasonable — even admirable — position that seems designed to appeal to the moderate voters she’s trying to court. In it, Dumanis claims that she “absolutely support[s] the legitimate, legal use of marijuana for medicinal purposes” and even cites personal examples of “known friends suffering from debilitating, and sometimes fatal, diseases whose only relief from nausea or lack of appetite was marijuana.”

Unfortunately, Dumanis’s actions on this issue do not match her words. To put it mildly.

Words: In her statement, Dumanis pledges: “As Mayor, I will bring all levels of government together, trying to coordinate a lasting, legal solution [on medical marijuana.] I will leverage my long-standing relationships with law enforcement, business leaders and community activists to bring differing ideas and viewpoints to the table.”

Actions: The City has already been engaged in a 2-year-long effort to “coordinate a lasting, legal solution” on this issue. Dumanis has not just been absent from the effort, she has refused invitations to become involved.

In 2009, the San Diego City Council established a one-year task force on medical marijuana. The task force was comprised of 11 members of the community from all walks of life. It included a physician, a retired San Diego police officer, a small business owner, a medical marijuana patient, and a Reverend, among others. The task force literally brought together “law enforcement, business leaders and community activists” to recommend a “lasting, legal solution” to City Council. I was honored to be appointed to chair the task force.

One of the very first things I did as task force chair was to reach out to Bonnie Dumanis’s office to invite her, or someone from her office, to participate in our effort. Shortly before our first meeting in October 2009, I emailed Bonnie Dumanis’s Narcotics Division Chief and Assistant Chief outlining our planned meeting dates and inviting a representative from the District Attorney’s office to participate in person or via writing. Over the next several months, I extended additional invitations on behalf of the task force to a number of people from Dumanis’s office in person, by phone, and by email.

Her office did not take up our invitation. I was never given an explanation as to why Dumanis and her office refused to participate in the effort to craft regulations. By contrast, representatives from the San Diego Police Department accepted our invitation to participate and graciously offered their time and expertise to the task force.

Words: In her recent statement, Dumanis says she believes that “it’s important” that medical marijuana patients “are provided with legitimate access” to medical marijuana.

Actions: As District Attorney, Bonnie Dumanis’s office has refused to issue badly needed prosecutorial guidelines to enable medical marijuana cooperatives to comply with the law and provide “legitimate access.”

In June, 2010, the San Diego County Grand Jury issued a report (PDF) on medical marijuana in response to complaints it received about “the lack of clear and uniform guidelines under which qualified medical marijuana patients can obtain marijuana.” In the report, the Grand Jury recommended that “the District Attorney’s Office should publish a position paper to outline what it considers the legal and illegal operation of medical marijuana collectives and cooperatives.”

Bonnie Dumanis has not yet issued any guidelines.

As District Attorney, Dumanis could do a great deal right now to help make sure patients “are provided with legitimate access” by simply issuing guidelines that state clearly what her office believes is and isn’t lawful under state law. Prosecutorial guidelines would allow medical marijuana collectives that wish to operate legitimately to make sure that their conduct is in compliance with Dumanis’s interpretation of state law. In the absence of them, San Diego collectives have been forced to guess at what Dumanis’s office considers to be legal and face a constant threat of prosecution.

Words: In her statement, Bonnie Dumanis implies that her office has only prosecuted bad actors who are using state medical marijuana laws to shield unlawful activity. “What I do not support is drug dealers hiding behind Proposition 215 to sell marijuana for profit to people who don’t need it for medical reasons, selling to our children and even selling to people who have prescriptions in the names of their pets,” Dumanis says.

Actions: As District Attorney, Bonnie Dumanis has made all medical marijuana cooperatives in the city potential targets for prosecution, not just those that are selling to people who do not have valid medical recommendations. On September 10, 2009, for example, Dumanis said that there was “no such thing right now” as a “legitimate medical marijuana dispensar[y]” in San Diego. It’s easy enough to argue that you are only going after the bad apples if you define every single collective to be a bad apple.

Bonnie Dumanis’s argument that no collectives are operating lawfully is based on an unusually restrictive interpretation of state law that her office has adopted in court. The legal details are complex but, in essence, a 2003 state law allows medical marijuana patients to associate “in order collectively or cooperatively to cultivate marijuana for medical purposes.” In most parts of the state, local prosecutors have interpreted this law to legalize medical marijuana collectives and cooperatives that operate more or less like a food co-op — patients with a lawful recommendation can join a collective to purchase medical marijuana. Bonnie Dumanis’s office, by contrast, has argued in court that in order to be operating lawfully, a collective needs to be run like a hippie commune, with every member of cooperative contributing labor. She has used this unusual interpretation of state law to prosecute medical marijuana providers who would be considered to be operating lawfully in almost any other part of the state.

The evidence of Dumanis’s over-reach can be seen by the fact that San Diego juries have rejected her strained view of the law in medical marijuana prosecutions.

In 2009, for example, Dumanis’s office prosecuted medical marijuana patient and provider Jovan Jackson for operating a medical marijuana collective. The prosecution was based on her office’s narrow interpretation of state law. The jury acquitted Jackson. After the trial, the foreperson explained: “the prosecution gave his narrow definition [of a collective] during the closing arguments, but there was nothing in the law that really backed that up.”

Incredibly, Dumanis’s office prosecuted Jackson a second time based on similar charges. This time, her office filed a motion to deny Jackson the ability to argue to the jury that his actions were in compliance with state law. The Judge granted this motion and, without the opportunity to mount a defense, Jackson was convicted. The case is currently on appeal.

In another example, in 2010, Dumanis prosecuted medical marijuana patient, leading advocate, and Navy veteran Eugene Davidovich for providing a fellow patient with a lawful recommendation (who turned out to be an undercover agent) with medical marijuana. Davodich admitted to the sale but argued it was lawful under state law. The undercover surveillance tape showed Davidovich checking the patient’s recommendation, but Dumanis’s office still decided to prosecute. The jury agreed with the defense and acquitted Davidovich.

Dumanis could revise her unusually narrow legal interpretation at any time. Or, as discussed above, she could articulate guidelines explaining her interpretation in detail so that medical marijuana patients and providers could abide by them. That hasn’t happened.

The bottom line: Bonnie Dumanis’s statement “clarifying [her] position on medical marijuana” is fundamentally inconsistent with the actions she has taken as District Attorney. As District Attorney, Dumanis has stood in the way of safe access to medical marijuana for patients at every turn by declining to work with the City’s task force, refusing to issue prosecutorial guidelines, and working to shut down all medical marijuana collectives in San Diego.

Dumanis has the ability to show that her statement is more than just words. If she means what she says in her new statement, she should issue the prosecutorial guidelines the County Grand Jury asked for in June 2010. In the meantime, she (or another attorney from her office) could meet with medical marijuana collectives and answer their questions about how to abide by the law. Likewise, if Dumanis is truly supportive of medical marijuana, she should have her office drop its opposition to Jovan Jackson’s appeal and allow him to present his defense in court.

If her statement turns out to represent a change of heart on this issue, I would be the first to applaud her. Without action, however, it is difficult to see Dumanis’s statement as anything other than an election-year attempt to run from her record in order to address concerns from moderate Democratic and Independent voters who support medical marijuana.

Alex Kreit is an assistant professor and Director of the Center for Law and Social Justice at Thomas Jefferson School of Law, and past chairman of the city of San Diego’s Medical Marijuana Task Force.