Posted: October 30th, 2010 by Militant Libertarian
Mili Note: The following are three scenarios I penned as part of a comprehensive analysis of California’s Proposition 19 (The Regulate, Control and Tax Cannabis Act of 2010). The bulk of the analysis, linked below, goes line-by-line through the proposition detailing what each section does, which part of the California Code it affects, etc. These scenarios are possible loophole uses of the law to make it do exactly the opposite of its supposed intention (legalizing marijuana). Nevermind, of course, the whole “regulate, control and tax” bit.
Now that we’ve looked at the entire Act, as written, and understand how it will actually function as law, let’s consider how it might be interpreted. Often, the best-laid groundwork that might appear hard-and-fast to many can be manipulated to incorporate things never considered. The U.S. Constitution is a good example of that. So how could Proposition 19 create unintended consequences?
To answer that, let’s wargame some simplistic scenarios that lead to an alternative interpretation by police or the courts, changing what Prop 19 was intended to do.
Scenario 1: The Underage Medical Marijuana Patient
Patty is a medical marijuana patient, aged 19, who has an MMJ card authorized by her physician to treat an illness. She lives in an apartment with four roommates and cannot easily grow her own cannabis, so she relies on a dispensary. After Proposition 19 becomes law, her life changes.
Police interpret the new rules as trumping the old ones and arrest Patty and the caregiver at her dispensary. Patty is arrested for illegal possession while the caregiver is arrested for selling marijuana to a minor.
The police and the district attorney both agree that Patty is violating HSC 11300 (see Article 5, above). They also agree that pursuant to that, her caregiver has violated HSC 11361 (see Section 4, above) and is therefore subject to both a misdemeanor offense and the loss of his license to sell for a year.
In court, Patty’s lawyer argues that Section 2 of The Regulate, Control and Tax Cannabis Act of 2010 clearly gives the Act’s intent to not include medical marijuana. The prosecutor counters by stating that Section 2 does not specifically say that medical marijuana regulations are exempt from the changes made by the Act.
The defense reads Section 2, Part B (Purposes):
“6. Provide easier, safer access for patients who need cannabis for medical purposes.
7. Ensure, if a city decides not to tax and regulate the sale of cannabis, that buying and selling cannabis within the city’s limits remains illegal, but that the city’s citizens still have the right to possess and consume small amounts, except as permitted under Sections 11362.5 and 11362.7 through 11362.9 of the Health and Safety Code.”
The prosecution then argues that Item 6 does not include any language regarding changes made to HSC 11361 and marijuana possessors under the age of 21. Further, Item 7 applies only to cities in which commercial marijuana has been legalized, as is the case in the city in which Patty was arrested.
The court, hearing the arguments, decides against the defense, declaring all medical marijuana users under age 21 and their suppliers in the city to be breaking the law.
Scenario 2: Licensed Commercial Growers Transporting Through Cities and Counties
Bob and Cindy are licensed, commercial growers with a greenhouse in Fresno. After processing, they sell to, among others, licensed stores in both Oakland and Redding.
When transporting from Fresno to Oakland, they must pass through several cities including Madera, Modesto, and Stockton. Madera does not have commercial marijuana laws, prohibiting it. Modesto has commercial marijuana regulations, but only taxes at the retail point. Stockton has commercial marijuana regulations and taxes all marijuana in its jurisdiction. Fresno also taxes all wholesale sales of marijuana, requiring a tax stamp for each quarter ounce produced.
Bob and Cindy pay the Fresno tax by pre-purchasing 1/2oz stamps to affix to half ounce packages they sell at wholesale to retail establishments. When passing through Stockton, their delivery driver must stop at the city’s police department and present his manifest so that Bob and Cindy can be taxed for their transported marijuana. The driver is also subject to random searches and drug testing, per the County’s rules for cannabis transport.
When traveling all the way to Redding, he passes through half a dozen similar facilities where he must either present tax stamps for that jurisdiction or be subject to random search and testing.
In this scenario, we see that the transport of marijuana could, because of the mish-mash of rules, lead to a real problem. This is a possible outcome of the localization under 11301.
Lori grows marijuana in her home in a five by five area, as required by law. She has six plants, all potted, and placed variously throughout her home. Since the plants are near maturity, she also has six cutting starting in small cups. She’s carefully measured to be sure she’s under the 25 square foot rule.
Her friend, Stan, stops by to visit and she proudly shows him her grow operation and they enjoy a hit of some of her latest cuts. Both are over 21 and giving it to your friends and enjoying it in your home is within the law.
A few days later, Stan is detained by police for possible driving under the influence. He has a bag of weed on him and the cop’s scales show it to be well over an ounce – more than 40 grams. Stan is arrested for possession of more than an ounce of marijuana.
When detectives question him, he asks for a deal. He tells them he knows someone who is growing more than 25 square feet and tells them about Lori. Based on his “tip,” the police get a warrant to search Lori’s home.
At 3am, they kick in the door and conduct a raid, dragging her from bed and putting her in handcuffs. They present their warrant and begin tearing her home apart, gathering all of the marijuana plants they can find into one area. They then measure them, finding she has about 24 square feet of plants. They uncuff her, hand her the warrant, and leave.
Her home is a shambles, her plants are probably going to die, and she’s been frightened half to death. Of course, because the raid was “legitimate,” she has no recourse and must pay for the replacement of the front door and frame, the ruined carpet, to fix the scuffs their tools and boots made on her hardwood floors, and a couple of broken cabinet doors.
Unrealistic? It’s one way they would continue their current Drug War tactics to enforce the 25 square foot rule. At least Stan didn’t tell them that he’d gotten all 40 ounces from Lori.
Proposition 19, The Regulate, Control and Tax Cannabis Act of 2010 is not perfectly-written and it will not create a utopia of cannabis legalization in California.
Whatever your views on whether Proposition 19 is a step forward or backwards is up to you to decide on November 2. Remember that “steps in the right direction” don’t always stay on the path intended for them and that the “foot in the door” might get smashed when the door is closed. More than a few unintended consequences have been the result of this baby step approach.
The Department of Homeland Security, created in 2002, was supposed to be a way for the various law enforcement and intelligence arms of the government to work together. Instead, it’s becoming the largest agency of the federal government and is being criticized for it’s huge size, inefficiency, and inability to coordinate the various participants.
Before that, the federal tariff on imported sugar was meant to protect sugar beet and sweet potato farmers in the U.S. from cheaper foreign competition. Instead, it’s raised costs for all of us, created a market need for unhealthy alternatives like high fructose corn syrup, and created an industry that exists only because of government intervention on their behalf.
More recently, the financial crisis of 2008 lead to bailouts by both Presidents Bush and Obama, to the tune of more than a trillion dollars combined. Meanwhile, the national debt soars well past the ten trillion mark and the debt of many states, including California, becomes unmanageable. The entire manure pile of bailouts is blamed on need created by “toxic mortgages,” yet none of the bailout money actually paid to keep homes out of foreclosure or relieve the sudden value losses when the nose diving economy destroyed the real estate market.
California voters must decide next week whether an “incremental approach” is really going to get them to their goals. Yes, it’s a step in the right direction, but if it’s challenged by the federal courts or if the federal government decides to make their Drug War more intense in California to counter the law, what will become of this incremental step? Will the problems that Prop 19 creates be worth it?
We may find out starting November 3rd.