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Friday, May 25, 2007

Woodland Arrest Sets Stage for Legal Battle on Medical Marijuana in Yolo County

Last week, Josh Fernandez of the Woodland Daily Democrat reported that Bobby Harris owned the pot that was involved in a late night Woodland arrest. For those who do not remember or were not here, Mr. Harris had been a candidate for the Woodland City Council when his house was raided in early 1990 and a number of marijuana plants were seized after being found growing in his basement. Since then, Mr. Harris has become one of the leading advocates for medical marijuana and lynchpin behind the medicinal marijuana initiative and subsequent laws that aid individuals suffering from serious illness.

I interviewed Bobby Harris this week and he told me that he charges well below market rate to people who are in need of the drug for medicinal use. For him this is not about getting rich or even making a lot of money, it is about helping people in need to get the treatment that they deserve.

Mr. Harris has lived in Arcata up in Humboldt county for the last 11 years or so, working with that county in hope of setting up a system to implement the law to enable medicinal use. The laws up there are much more conducive toward helping people get the treatment they need.

However those efforts have now run squarely into Yolo County law enforcement. As Bobby Harris wrote in a letter to State Assemblywoman Lois Wolk:
“One basic and very serious problem I’m running into… is that the local DA is starkly and dramatically violating state law.

It’s like a Kafka novel about a police state. Now, that can’t be Yolo County, can it?”
Following the passage in February by the Yolo County Board of Supervisors of a medical ID card law—a law that Harris calls fundamentally flawed and aimed at helping law enforcement and their “laziness” rather than helping medical marijuana patients—Harris decided to take the fight for medicinal use back to Yolo County.
“Initially, I had to go to Arcata to begin the task of implementation. Now, I have to return to Yolo County to complete this job. Yolo County (in my estimation) is the lynchpin of political policy, for affecting eventual, statewide implementation”
Unfortunately, his legal battle in the early 1990s left him without much in the way of resources—no car, no place to live in Woodland, and no money. He got two young friends in Woodland—Brian and Chris—to bring his belongings from Arcata to Woodland—a five or six hour drive.

This included bags full of marijuana plants. Along with the marijuana, Harris provided Bryan with documentation that stated that he was Harris’ caregiver including written permission from his physician certifying that he was transporting the marijuana for the needs of a patient. According to Harris, this should have made the transport legal.

However, Woodland and Yolo County authorities would argue otherwise as we’ll see shortly. Harris probably made at least two errors, one of which was to try to transport the entire plants down there. The other was allowing the two young men to travel with a jeep that was not in perfect condition.

When asked how it was that they were contacted by the police, Harris told me that as the men entered the outskirts of Woodland, they were pulled over by Woodland Police Officers. “Basically it was what they call a pretext stop,” he said. The back window of the vehicle had been broken and the young men put a plastic cover over it as a opposed to repairing it. The police noticed the plastic flapping around. “Unfortunately we are in a system where it is legal to pull people over for such things.” As the officer approached the car of course, he quickly smelled the large quantity of marijuana and searched the vehicle and found nine pounds of marijuana plants.

Proposition 15 which was passed by California voters and overwhelmingly passed by Yolo County voters in 1996 does not contain any kind of limitations for the amount of marijuana that can be transported. However, AB 420 authored by John Vasconcellos does.

Mr. Harris believes that Vasconcellos’ law was an unnecessary sell out and compromise of Proposition 215. It gives statewide guidelines pertaining to the amount of marijuana that can be transported and given to patients. These limits are up to 6 mature or 12 immature plants and up to half a pound of dried, processed marijuana.

Mr. Harris’ friends were found with 9 pounds. But as he explained, about 8 of those pounds are unusable parts of the plant. There was only about a pound worth of usable marijuana and the rest was basically trash. Of course neither the police nor the DA’s office see it this way.

Moreover, as Bobby Harris pointed out to me, there are exemptions in the law if there is a physician statement that they need more than one half pound. His physician gave him a document that authorized pounds and 25 plants. He adamantly told me that he made those specific preparations and that he was fully authorized to transport the amount that was transported.

I recently spoke with a former prosecutor who told me of a case that happened awhile back whereby they had seized a large quantity of marijuana plants. But because the plants will rot if you keep them in plastic bags, you have to wrap them in paper, like you would vegetables. Once you wrap them in paper they dry out and they lose a considerable amount of weight. By the time the evidence got to court, there was much less in weight and they had to account for where the rest of the marijuana went. A key question they said will be whether the court will weigh usable versus unusable quantities.

I asked Bobby Harris whether they are being charged with a federal law or a state law. And he said, “state law.” If they are being charged with a violation of state law, it would appear that the DA’s office will have a legal battle on their hands. My sources tell me that the DA’s office is a bit apprehensive about the case.

According to Fernandez’s article in the Daily Democrat:
“Yolo County District Attorney Jeff Reisig has another opinion.

Reisig has made it quite clear that he favors federal law over state law when it comes to medical marijuana.”
As the Vanguard reported in February, both Yolo County District Attorney Jeff Reisig has argued that he is bound by federal law over state law. He and Sheriff Ed Prieto argued that the county should not pass an ordinance authorizing the use of medical marijuana ID cards.

“Yolo County District Attorney Jeff Reisig and Sheriff Ed Prieto both argued against this proposal from a legal standpoint. Reisig argued, "If this passes, it puts law enforcement in between a rock and a hard place." He pointed out that the majority of counties have not gone this route. Moreover this is a "Violation of federal law, period." The U.S. Supreme Court he argued, made it clear that federal law through supremacy cause makes federal law binding in the states.

Supervisor Mike McGowan asked District Attorney Reisig if an officer stopping someone is enforcing federal or state law?

Reisig completely avoided that question and simply repeated that this put a law enforcement officer between a rock and a hard place.

However, Reisig avoided the question because he knows full well that the county and local police do not enforce federal laws, rather they enforce state laws and the state law of California is clear, not only does the law allow the use of marijuana with the permission of a doctor for the purposes of medicinal use but the state law Senate Bill 420 requires counties to provide identification cards. And the State Supreme Court upheld this law this past December.”
The fundamental problem according to Mr. Harris is inadequate training on the part of law enforcement authorities to deal with these issues.
“Local law enforcement officials (from the top to the bottom) are inadequately trained to understand, engage and evaluate matters in this area of state policy --- and they are being used through the agency and power of the local DA to blatantly violate state law.

This is not simply reckless or indifferent behavior by the local DA, it is plainly intentional conduct, based upon his obviously incorrect understanding of the law and the huge responsibilities of his office.”
Harris told the Daily Democrat:
“If (Reisig is) going by federal law, he's violating his oaths of office… There's a little understanding on the part of law enforcement."
The argument from Reisig makes as little sense today as it did in February, I have not heard of a District Attorney charge an individual and prosecute a federal crime.

Overall Bobby Harris is not impressed with Yolo County’s efforts on the medicinal use of marijuana front.
“You say that Helen and some other local politicians are supportive of P215, but the facts are that (even) SB420 has been on the books for several years, without adequate response and support by them. They haven’t acted to expand the - - spectacularly absurd - - state (supposedly “threshold”) limits on possession and cultivation, for example; while, Humboldt Co. has responsibly done so.

So far, Yolo Co. has failed to properly implement this initiative, after more than a decade, despite this latest small (and unlawful, as earlier explained) consideration and program given to patient ID cards.”
Still, Mr. Harris saves his most pointed criticism for Jeff Reisig, Yolo County’s new district attorney.
“Yolo County is much more sophisticated than to permit this sort of gibberish which is emanating from the DA to prevail as public policy. What’s going on over there in Yolo County?”
Bobby Harris was well aware of the problems involving Dave Henderson’s tenure as District Attorney, what he was not as well aware of was that Reisig was Henderson’s handpicked successor.

Listening to Jeff Reisig back in February arguing against state mandated identification cards on the basis of federal supremacy, it was clear that at some point this type of situation would occur, where there would be a major bust of an individual transporting medicinal marijuana. With good counsel, it seems likely that this arrest could be thrown out, however, this case does represent a bit of gray area. Part of the problem here has been the lack of aggressiveness of state and local official to implement voter mandated programs in the face of federal opposition. However, contrary to the viewpoint of Reisig, he represents the state of California in legal hearings, not the federal government and as such he has a duty to uphold the laws of the state of California. If federal officials wish to prosecute individuals for possession and transport of marijuana for medicinal use, let them come here and do that.

Reisig, the Woodland Police, and Yolo County Sheriff’s Office need to follow state and county law. It would be helpful if the county supervisors would follow-through after their 3-2 vote in February to make the law even stronger and prevent county law enforcement agencies from making such arrests.

In the meantime, it will be interesting to see where this case ends up going as it has the potential to be a landmark case in the fight for medicinal use of marijuana for patients who are suffering from debilitating and in many cases terminal illnesses. It would be very nice to see the two local County Supervisors who are health and welfare advocates step up here and prevent this from occurring in the future.

---Doug Paul Davis reporting