SF Dispensary Sales Illegal? Nah, Says Oakland Attorney Robert Raich



The San Francisco District Attorney's office stated in a court memo this month that sales of medical marijuana at dispensaries are illegal. It was news to us, and news to Oakland lawyer and cannabis law expert Robert Raich, who took a cannabis case to the U.S. Supreme Court. Raich sent us this email outlining why DA's office is off-base. Put your law review caps on after the jump.

It is indeed disappointing to see the San Francisco district attorney's office parroting the garbage spewing out of Steve Cooley's office when they try to torture an interpretation of SB 420 beyond any recognition. But regardless of which DA's office is trying to argue that somehow SB 420 does not allow sales, that interpretation flies directly in the face of any rational interpretation of the statute. SB 420 expressly exempts certain participants in the medical cannabis industry from liability under H&S 11360 (sales). Nothing could be more direct.

Section 11362.765, not once - but twice - exempts caregivers and those who provide assistance to patients and caregivers from liability under (among other things) H&S 11360.

Presumably more to the point for Brendan Hallinan's client, Section 11362.775 provides that patients and caregivers who are members of a collective or cooperative shall not be "subject to state criminal sanctions" under any one of a list of marijuana prohibition sections of Health and Safety Code, including Section 11360 (sales).

The mental gymnastics Gascon's office uses in its brief to reach its conclusion are ridiculous, but I will mention just a few here. In Section VI. on page 9, the brief quotes Section 11362.775, but conspicuously leaves out the entire list of H&S sections collective and cooperative members are exempted from (including, of course, Section 11360). The brief then argues that what it calls "Collective or Cooperative Immunity" is limited to cultivation only. In other words, the brief acts as if Section 11362.775 only exempted from liability conduct under H&S11358, while utterly ignoring all the other H&S sections listed (including Section 11360). Essentially, Gascon's subordinate is acting as if all the other sections listed in 11362.775 are not present (except 11358), and that those other sections (including 11360) were somehow inserted by the Legislature as a "dead letter" in SB 420.

Section VI. of the brief additionally contends that all members of a collective or cooperative "must associate in order to cultivate medical marijuana", a position squarely at odds with People v. Colvin, which held that not all members of a collective or cooperative need to participate in cultivation. Conceptually, that is the only tenable interpretation, because not every patient is physically able to engage in cultivation activity.

Similarly, the last paragraph of Section VII. on page 11 of the brief alleges that collective or cooperative members are immunized from prosecution only if their activity is limited to cultivation. If that had been the case, the Legislature would not have included 11360 and the other H&S sections listed in 11362.775; instead, the Legislature would have mentioned Section11358 only. Gascon's office is in essence trying to "write out" Section 11360 (and presumably the other listed sections) from Section 11362.775 - as if the Legislature did not mean to include them in SB 420.

As a final example, Gascon's brief, at the top of page 13 states, "Had the Legislature intended marijuana sales to be legal the Legislature would have clearly immunized the conduct of 'selling marijuana' within the MMP . . . ." Of course, that is exactly what the Legislature did - three times - by expressly excluding persons from sanctions under Section 11360.

Law enforcement, including, sadly, even the San Francisco DA's office in 2012, will stop at nothing to try to prevent patients and caregivers from getting safe access to medical cannabis. Law enforcement's effort is directly contrary to the intent of the Legislature when passing SB 420, which was to: "Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects." Stats. 2003, ch. 875, ยง 1.(b)(3).

- Robert Raich