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Current as of March 15, 2006
Q:
My documentation was valid; my medicine was trashed by police; I was held in jail; my home was trashed; I only had six plants...
A:
The most important fact that many patients, caregivers, and their advocates miss is that the Washington State Medical Use of Marijuana Act gives patients no greater right than this: if they are arrested; if their plants are cut down; if they are ordered to the floor with guns to their heads; if their homes are tossed; if they are dragged off to jail; if they are incarcerated; if they are charged with the crimes of growing, possessing, delivering, or possessing with intent to deliver marijuana; and they have valid authorizing paperwork, they then have the opportunity to raise the medical marijuana defense before a jury at trial - after this parade of horribles. The statute provides nothing more than what lawyers call an "affirmative defense." It is akin to self-defense. If you kill someone who is attacking your friend, you can still be arrested, hauled off to jail, interrogated, and charged with murder. You get to raise the affirmative defense - at trial and no sooner - that you were acting in self-defense. But you cannot raise the shield of self-defense to prevent your arrest in the first place. Neither can a patient, under the current Washington State Medical Use of Marijuana Act, prevent her arrest or the destruction of her medicine if a police officer chooses to exercise her discretion in this fashion. This is true whether the patient is growing a single plant or 1,000.
It is misleading to claim that "[t]here is no plant limit in the state law." The law places the following limit: a sixty-day supply. The problem, which is immediately obvious, is that no one can state with any certainty what that amount is. Another problem is that a few bad apples will claim to be medical marijuana providers when in reality at least some portion of their crop is earmarked for recreational users - I know because I've represented them. I am not saying that they are bad apples because they want to provide marijuana to recreational users; they are bad apples because when they claim to be nothing more than medical providers in the face of evidence to the contrary, they muddy even further the question of what a legitimate sixty-day supply is, causing law enforcement to err on the conservative side and real patients and providers to suffer for it.
Obviously, this law has serious - and perhaps for some patients, fatal, which I do not say lightly having represented a caregiver in another county whose patient died shortly after his marijuana supply was confiscated - flaws. In my opinion, the law should be amended to establish a presumption that an individual possessing what appears to be valid paperwork cannot be arrested, cannot have medicine or other property seized or destroyed, and cannot be charged with a crime until a preliminary hearing has been held before a judge, at which the patient would have a full opportunity to respond and present a prima facie case of his medical use through appointed counsel. But that is not the current state of the law.
My understanding of the Seattle Police Department's nine-plant policy is that an officer in the field will not arrest or destroy the grow of an individual with what appears to be valid medical marijuana paperwork if the grow does not exceed nine plants in size. I hope that our SPD Panel member can clarify this for us tomorrow. The official SPD policies for handling medical marijuana investigations are available to the public in the SPD Policy and Procedure Manual, SPD Manualv1_1.pdf, at Section 3-109, Part VIII (revised: 2/22/2006).
If my understanding of the nine-plant policy is correct (and I would certainly feel more comfortable if any such policy were memorialized in the Policy and Procedure Manual), when one considers the limitations of the Washington State Medical Use of Marijuana Act and what it actually says, it becomes clear that the Seattle Police Department's policy of not arresting at least one segment of patients or caregivers or confiscating their plants is a laudable step in the right direction. We can argue about the sufficiency of this particular number, but remember - the current law allows the police to arrest, and prosecutors to prosecute, valid patients who grow even a single plant. Police and prosecutors can exercise their discretion in ways that give more meaning to the law, and we hope that most do, but the law provides nothing more than the affirmative defense. Given the vagueness of "a sixty-day supply," the lack of much-needed information about patients' real needs in widely disparate contexts of illness and injury, and the pressing need of the officer in the field to make difficult, on-the-spot decisions on a case-by-case basis, I cannot say that the SPD policy is an unreasonable one.
It is not okay to tell patients and their primary caregivers that they have rights that the law does not actually provide. To do so places them in jeopardy of suffering even greater trauma than their illnesses and injuries have visited upon them already. It is simply irresponsible. We need to collaborate and cooperate to try to work within the law as it currently is written and, at the same time, advocate to our state legislature to fix the statute to provide greater protection and clearer guidance for patients, caregivers, and law enforcement alike.
Alison Chinn Holcomb, Director
Marijuana Education Project
ACLU of Washington Foundation
705 2nd Ave., 3rd Floor
Seattle, WA 98104
206.624.2184 x. 252
holcomb@aclu-wa.org
www.aclu-wa.org
www.alisonholcomb.com
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