Medical Marijuana Advocates Appeal Conviction of San Diego Dispensary Operator

Court to decide on legality of "sales" & whether dispensary operators are entitled to a defense

San Diego, CA -- Medical marijuana patient advocacy group Americans for Safe Access (ASA) today appealed the September 2010 conviction of San Diego dispensary operator Jovan Jackson in a case that has received widespread attention. The case against Jackson has become a symbol of the effort by District Attorney Bonnie Dumanis and other prosecutors across the state to criminalize storefront collectives. Due to state jurisprudence, California Attorney General Kamala Harris will now defend Jackson's appeal rather than Dumanis, who originally tried him. The ASA appeal not only contests Jackson's conviction and his denial of a defense, but it also challenges the prosecution's assertion that "sales" of medical marijuana are illegal under state law.

"Jackson and other medical marijuana providers deserve a defense under the state's medical marijuana laws and these are issues for a jury to decide," said ASA Chief Counsel Joe Elford, who authored the appeal brief filed today. "The denial of Jackson's defense was unfairly used to convict a medical marijuana provider who was in full compliance with state law." At Jackson's trial, San Diego Superior Court Judge Howard Shore referred to medical marijuana as "dope," and called California's medical marijuana laws "a scam."

The Jackson case represents one of the first medical marijuana-related criminal appeals for Harris, who was elected one year ago after a hard-fought campaign against Los Angeles District Attorney Steve Cooley. Before taking office as Attorney General, Harris was the San Francisco District Attorney during the implementation and enforcement of her city's dispensary licensing ordinance, one of the first in the nation.

Jackson operated his storefront collective for years without incident until he was raided by law enforcement in 2008. Jackson was tried for marijuana possession and sales in 2009, but was acquitted by a jury. Dissatisfied with that result, District Attorney Dumanis tried Jackson again on the same charges stemming from a September 2009 raid by a multi-agency task force made up of local and federal law enforcement. It was at his second trial that Jackson was denied a defense and ultimately convicted. Judge Shore gave Jackson 180 days in jail before his conviction was appealed.

Several District Attorneys have asserted that medical marijuana "sales" are illegal under state law, despite guidelines issued in 2008 by the California Attorney General and legal case law to the contrary. This contention -- that patients must take part in collective cultivation and "till the soil" -- has been used to deny Jackson a defense, even though other lower courts, like those in Los Angeles and Butte Counties, take a differing view.

For example, in Williams v. Butte County, the Superior Court held that, "the legislature intended collective cultivation of medical marijuana would not require physical participation in the gardening process by all members of the collective, but rather would permit that some patients would be able to contribute financially, while others performed the labor and contributed the skills and 'know-how.'"

Jackson is currently out on bail pending appeal, but he no longer operates his medical marijuana collective. The Attorney General has 30 days to reply to the appeal.

Further information:
Jackson appeal brief filed by ASA: http://AmericansForSafeAccess.org/downloads/Jackson_Appeal.pdf

Stop the Attack: California

On October 7, 2011, the US Department of Justice (DOJ) announced a crackdown on medical cannabis patients’ cooperatives, collectives, gardens, and others. The scope of the crackdown is shocking. Federal officials and agencies are threatening providers, growers, and property owners. They are seeking to intimidate elected officials, financial service providers, legal gun owners, and media outlets. This may be the broadest and most serious threat to medical cannabis yet.

Americans for Safe Access (ASA), the nation’s leading medical cannabis patient advocacy organization, has a plan to stop the federal interference and intimidation and take back the momentum for patients. The four components that comprise this plan are: (1) putting direct political pressure on lawmakers to oppose the DOJ’s tactics; (2) reframing the national conversation about medical cannabis; (3) using new legal initiatives to stall or stop federal pressure; (4) supporting local advocates who are coping with the fallout of federal pressure in cities and counties statewide. To accomplish all of this, ASA must expand its staff, operational capacity, and grassroots base. We need timely support from our constituents to rise to the occasion and stop the federal attack.

Click here to download a copy of ASA's seven-point "Stop the Attack" plan. You will need Adobe Acrobat Reader to downlaod the .pdf file.

“Stop the Attack” involves recruiting state and federal lawmakers to put direct political pressure on the DOJ; and mobilizing a well-trained and strategic grassroots base to visit every district office in the state to clearly demonstrate support for standing up to federal interference and intimidation. Our elected officials need to know there is a safe political space to stand in supporting medical cannabis. This political push will not just focus on stopping the activity we do not want. ASA staff and members will be advocating for state and federal legislation that will help stop the federal pressure.

Local, state, and federal lawmakers are already responding to this effort. State Senators Mark Leno (D-SF) and Leland Yee (D-SF), Assembly Member Tom Ammiano (D-SF), California Attorney General Kamala Harris, and several local elected officials have already spoken publicly in opposition to the crackdown. California Board of Equlaiztion Member Betty Yee spoke up in opposition to the federal crackdown in front of a crowd of almost three hundred medical cannabis advocates in Sacramento on Novenmber 9, 2011, leading the crowd in chanting "We're patients, not criminals!"

US Congressmen Dana Rohrabacher (R-CA) and Sam Farr (D-CA) spoke up early in the crackdown, and more recently, seven other Members of Congress joined them in signing a letter to President Obama calling for rescheduling of medical cannabis.

In addition to political solution, ASA will also be launching a proactive media campaign designed to reframe the national conversation about medical cannabis, by bringing the patients’ needs back to the forefront. This plan involves indentifying new opinion leaders to speak out about the federal crackdown and need for federal reform; and includes innovative new strategies to get patients’ faces back in front of policy makers, media, and voters.

ASA has already filed a groundbreaking Tenth Amendment lawsuit to fight back against federal threats against stakeholders, including cultivators, providers, and property owners. We are also expediting work on important state litigation that will help establish the right or patients to acquire medicine inside a cooperative or collective and federal litigation to force a change in the classification of medical cannabis under federal law.

Click here to download information about how you can support ASA's federal legal efforts. You will need Adobe Acrobat Reader to downlaod the .pdf file.

ASA must also help support local advocates coping with the fallout from the federal interference and intimidation in cities and counties. Some local officials have stalled efforts to implement medical cannabis programs, leaving patients and providers alike in limbo. ASA has already dramatically expanded our capacity to support local advocates by providing a free online Advocates Training Center, which uses videos and digital workbooks teach grassroots organizers basic, intermediate, and even advanced organizing skills. The program is also available in an inexpensive paper workbook format. 

Visit http://www.AmericansForSafeAccess.org/TrainingCenter to learn more.

ASA realizes that our grassroots base will need more than just training to be effective. That is why we have organized our innovative Medical Cannabis Think Tank and Policy Shop to help support local efforts to implement medical cannabis laws, stop bans, and when necessary adopt voter initiatives and referendums. The Think Tank and Policy Shop gives local activists a vehicle through which to use our expertise and experience, while acting as effective local leaders in cities and counties statewide. 

Visit http://www.AmericansForSafeAccess.org/PolicyShop to learn more.

Using political, media, and legal strategies, ASA can stop the federal attack on medical cannabis in California and support local advocates fighting back in their communities. We have done it before. ASA was instrumental in stopping a similar attack by the Bush Administration in 2007 and 2008. But to be effective we need the participation andsupport of our constituents.

For more information, contact ASA California Director Don Duncan at don@safeaccessnow.org or call ASA toll free at (888) 929-4367.

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.