🚀 go-pugleaf

amp:

One thing you aren't doing is looking at this thing in context. 
Voters in California passed Prop 215 back in 1996.  The legislature
didn't do this and the state government, by and large, has stayed far
away from it, not further regulating or clarifying the laws.  The
higher courts there have only recently gotten involved to any extent
and have in fact it appears ruled that only strictly defined primary
caregivers are to be growing marijuana and it looks like they have
finally closed any loopholes which may have existed for the
cooperatives. See PEOPLE v. GALAMBOS, C032873, (Cal.App.4th 2002)(In
this case a conviction of a man growing purportedly to supply a
medical marijuana cooperative was affirmed on December 26, 2002)

But in the earlier days since Prop 215 came into effect, medical
marijuana has been a free-for-all.  The State had a hands off
approach.  They stayed far away from it and let counties and cities
set up their own programs.  Many of these cooperatives or "medical
marijuana clubs" apparently operated with no overt approval of the
local authorities, although one has to wonder because no one seemed to
try to shut these down.  In some places however, local authorities
have really gotten involved in these cases and there can be no denying
that the locals were actually allowing if not cooperating with large
scale medical marijuana growing and distributing operations.

In the Rosenthal case, it appears at least from the news reports, that
the city not only allowed Rosenthal to grow pot, they actually
purported to give him some authority to do so. This may not have been
entirely legal under the statute and in fact, under present California
court interpretation of the statute, would probably not be legal.

But even if the parties involved may not have been following the
letter of the law, Rosenthal had a very strong argument that he was
operating with something like implied permission from the state. 
Unquestionably, the state has allowed these local governments to set
up and run their own programs.  Local District Attorneys, who actually
represent the state of California, have actually been instrumental in
setting many of these programs up, as have local law enforcement.  If
the state is going to allow its agents to give approval for these
local programs, the State should be estopped from prosecuting persons
acting with approval from the state. (note, the fellow in PEOPLE v.
GALAMBOS had no such approval, only a contract with a medical
marijuana cooperative)  It shouldn't matter whether a local DA
actually actively participated in setting up the program.  If he
allowed it to go on under his nose without doing anything about it,
gave any signs that he approved of it, he should be barred from
prosecuting without at least giving fair warning and the opportunity
to cease the proscribed conduct.

If the news reports accurately portray the relationship between Ed
Rosenthal, local law enforcement, city officials and so on are
correct, I think he would have been able to have escaped prosecution
from the State even if they did try.  I think he would have had a good
argument that he did have a form of permission from the state and
certainly from the locals.  Even if he was not in compliance with the
letter of the law, he was acting under color of law and would have had
several defenses available to him.

Laws are often not cut and dried, black and white. Reasonable minds
often differ as to what the black letter law in a certain area
actually is.  And you have to wonder if someone is acting with
apparent authority from the State if the State could have then
prosecuted him for breaking the laws it allowed him to break.

I don't know if California could have successfully prosecuted
Rosenthal or not. If the circumstances were as described by the news
outlets, I doubt they could have.  I suspect he was acting within the
law, albeit in the grey, fringe areas of it.

But we are losing sight of the forest for the trees.  The real
questions coming from all of this are questions like whether
California, or any other state, should be able to have its own medical
marijuana laws, especially in the context of the 10th Amendment
argument?  Should the federal government reschedule marijuana?  Should
jurors be informed of the principle of jury nullification?  Is it a
good idea for our federal government come in and subvert the will of
the people in a state and trample on that states sovereignty enforcing
laws against someone who is acting apparently with the approval of
that state and her citizens?  These are the important questions coming
out of this cases that people will be arguing about many years from
now. Whether Ed Rosenthal was technically in compliance with Prop 215
as written and whether medical marijuana is good medicine and so on
are just little side issues and footnotes in the grand scheme of
things.