Monday, September 15, 2008

CO: Marijuana a growing battle

Medical Marijuana Can Be Used, Distributed, but Cultivators Face Jail

HUERFANO COUNTY - Mike Stetler is proud of his garden. It took him
months to get the lush jungle just right.

"Beautiful, isn't it?" he said.

A decade ago, the labor of planting would have been impossible for
Stetler. Strung out on Demerol, OxyContin, morphine and oxycodone,
the pain-addled Navy veteran was, he says, "a slobbering zombie,
stupid and living in la-la land."

Since 2002, though, when he started growing and smoking the medicinal
marijuana he now tends so carefully, he hasn't touched a pill.

"The pain isn't all the way gone, but I can live again. I can get out
of bed. The sun is shining on me again," he said. "See what God does?
He gives us something beautiful to use. This healing herb. And what happens?"

What happened is sheriff's deputies landed a helicopter on his land,
broke open two padlocked gates and ransacked his trailer, ripping a
gaping hole in the roof. They seized 44 marijuana plants and more
than eight state-issued medical-marijuana cards that indicate other
medical-marijuana patients have told the state he is their designated
caregiver. They left a search warrant hanging over Stetler's
medical-marijuana sign.

Almost eight years after Colorado voters approved Amendment 20,
engraving in the Colorado Constitution the lawful use of
doctor-recommended medical marijuana for those "suffering from
debilitating medical conditions," police and prosecutors zealously
pursue medical-marijuana growers like Stetler, citing everything from
the fact that they just don't like the law to concerns about public
safety and confusion over what the law allows.

The law is "overly broad," "a work in progress," "vague" and "a
mistake," according to cops and prosecutors along the Front Range,
home to more than three-quarters of the state's 3,302 residents
enrolled in the Colorado medical-marijuana registry program. There
are 12 states in the U.S. that have medical-marijuana laws. Of the 10
with marijuana card systems, Colorado is the only state that does not
issue caregivers like Stetler licenses that specifically allow for cultivation.

"Marijuana cultivation is a violation of federal and state law. Just
because someone says 'medical marijuana' doesn't mean we
automatically back off and we don't enforce the law," said Larry
Abrahamson, district attorney for Larimer County, where more than 45
percent of felony marijuana cases in the past decade have involved
growers, many with state-issued cards. "Just because we have
Amendment 20 does not mean we have free marijuana for everyone."

Raid, but No Charges

Tucked into a lonely corner of 7,755- resident Huerfano County,
Stetler has nursed 33 new marijuana plants from the sandy soil. Good
medicine, he says, squeezing sticky, stinky and crystallized buds
atop listing 7-foot stalks.

His plants are growing on private land miles from a paved road in two
sheds posted with 13 state-issued medical-marijuana certificates that
designate Stetler is now a licensed care giver for 13 patients. His
doctor has advised he needs 15 plants to alleviate his constant pain
stemming from a 1990 car accident.

Since the raid more than a year ago, Huerfano County Sheriff Bruce
Newman has not filed any charges or returned Stetler's plants. No
visits from police. Not even a ticket or a letter. Newman said he's waiting.

"We want to see what happens with some of these other cases," said
Newman, who suspects not all of Stetler's 44 plants were legal and
has destroyed them. "There's a lot of legal stuff up in the air, and
it's going to take judges making decisions to figure it out."

The amendment seems to be functioning for people who use and
distribute medical marijuana. Eleven storefront dispensaries operate
openly in Colorado, some distributing medical marijuana to as many as
600 patients who need as much as an ounce of the weed a week. More
than 500 doctors have recommended marijuana, and the number of
patients on the state's registry has almost doubled since January.

"I'd have to say it is working," said Denver attorney Warren Edson,
who represents half of the state's dispensaries. "But the
dispensaries are not cultivating, and there's a huge need. The
cultivation side is problematic." Lawyer Sean T. McAllister of
Breckenridge. (Joe Amon, The Denver Post)

Indeed, for the green-thumbed suppliers of the statewide demand for
thousands of pounds of medical marijuana, life is not good. While
Amendment 20 outlines a host of protections for medical-marijuana
patients and allows them to designate a caregiver, the law does
nothing to address growers.

So though many medical-marijuana patients designate growers as
caregivers, the marijuana farmers are subject to arrest-first,
ask-if-it's-medical-later SWAT raids. They face lengthy and costly
legal battles, which, regardless of an acquittal, dismissal or
conviction, end with dead marijuana plants.

"The police are supposed to be protecting me from thieves and such,
but they are the thieves," said Stetler, who is one of three
designated caregivers in Colorado preparing a civil lawsuit demanding
compensation for plants destroyed by police.

"It's not right. They are making up their own laws and mocking the
state's laws they are supposed to be protecting. They are mocking the
voters they serve."

"Where do they think all the medical marijuana for more than 3,000
patients comes from?" said marijuana farmer Chris Crumbliss, who has
been raided twice in Larimer County despite possessing dozens of
state-issued medical-marijuana cards from patients listing him as
their primary caregiver. "Do they want one person growing for 50
people, or do they want 50 people growing on their own?"

Law Rubs Wrong Way

For police, Amendment 20 conflicts with federal laws and long-held
state laws prohibiting cultivation of marijuana.

Even worse, say police, Amendment 20's requirement that all property
and plants seized in a medical-marijuana investigation "shall not be
harmed, neglected, injured, or destroyed" is unworkable. (If a cop
waters a marijuana plant, is she breaking the law?)

And the notion that marijuana - which the federal government
considers a "Schedule I" substance alongside PCP and methamphetamine
- can be legal at all dismisses decades of law enforcement culture
and ingrained drug war doctrine.

Larimer County's Jim Alderden is a folksy sheriff who refers to
Amendment 20 as an "ill-conceived law" and aggressively pursues
marijuana growers. They may call themselves licensed caregivers, but
he calls them "dope dealers."

"Wholesale drug dealers are hiding under the umbrella afforded them
by the statute," he says. "These people are nothing more than dope
dealers, and they are hiding under this thing, and we are not going
to back off. These people who say they are caregivers providing for
60 to 70 people are running the same sort of scam you see on the West
Coast where people see a physician who is willing to prostitute
themselves for money and say 'here's the dope.' "

Scott Carr, the regional director for Colorado's THC Clinic in Wheat
Ridge, disagrees with Alderden's assessment of doctors who recommend
marijuana. Carr says the doctors in his clinic care for their
patients and advise the best treatment for their ailments.

"We do a pretty extensive screening of medical history. We get charts
and copies of doctor notes," Carr said.

Jeff Sweetin, head of Denver's branch of the federal Drug Enforcement
Administration, regularly hears growers pleading their product is
medical marijuana. When the operations "reach into hundreds of plants
and millions of dollars, that argument that they are immune because
of state medical-marijuana laws is absurd," Sweetin said.

"I think it was a mistake. It's bad public policy, and it put cops in
a terrible spot," Sweetin said of Amendment 20. "The very term
'medical marijuana' doesn't hold much water. I mean really, what kind
of medicine do you smoke?"

Sweetin fields calls "all the time" from Colorado cops begging his
help when a court orders the return of marijuana or growing equipment.

"Ninety-nine times out of 100, our answer is, 'This is not our
problem to fix.' I feel for these guys and they are my friends and
they are partners, but it is not the position of the DEA to rescue
everybody from their state's legislation."

A Need for Clarity

If there's one thing cops, prosecutors, attorneys and growers agree
on, it's that more work is needed to lift the fog surrounding
Amendment 20 and its implementation. How it's going to get done is
the big question.

Last month, Crumbliss stood trembling with his arms held high in his
front yard at 4 a.m., his boxers pulled to his ankles, his head and
face wrapped in a T-shirt, a laser-scoped assault rifle trained on
his chest and his dogs howling from a shower of tear gas. He kept
saying one thing over and over: "I have a license to grow medical marijuana."

The armored men behind the guns were Larimer and Boulder county
sheriff's deputies in a multi-jurisdictional, predawn SWAT-team raid
of three of Crumbliss' homes. After months of investigation - which
included no-subpoena-needed access to Poudre Valley Rural Electric
Association electrical usage reports from Crumbliss' and neighbors'
homes - the raid netted 200 marijuana plants and 25 pounds of
cannabis. Crumbliss and his wife, Tiffany, were arrested and charged
with a host of felonies that could land them in prison for almost a
decade. It was the second time in two years Larimer County cops have
raided the Crumblisses, who have never hidden their predilection
toward medical marijuana.

"I thought I was going to be executed," said Crumbliss, a father of
two and a perpetually grinning marijuana farmer who holds more than
40 state medical-marijuana licenses from patients who list him as
their primary caregiver. "I've never had a felony in my life. I
preach love and compassion. I really believe what I'm doing is legal
and I am following the letter of the law. And it's an honor and a
privilege to stand up for sick people who can't stand up for
themselves. It might earn me a spot in jail, and it might earn me a
place in heaven."

Sean McAllister, the attorney who represented Crumbliss against his
previous and still-pending marijuana cultivation charges from 2007,
called Larimer County's "smash and grab" tactics "the worst abuse
I've ever seen by police of the medical-marijuana law because they
are arresting first and determining if it's medical later."

McAllister, the founder of Sensible Colorado, a nonprofit advocating
for drug policy reform, said the writers of Amendment 20 made too
many compromises and growers like Crumbliss are left in the law's "gray areas."

"You can smoke it. You can dispense it. But how are they supposed to
grow it?" said McAllister, a Breckenridge attorney who specializes in
medical-marijuana cases. "Unfortunately the Crumblisses are the
guinea pigs who are going to have to test the legal status of
Colorado's medical-marijuana laws."

Prosecutions Increase

Larimer County, which medical-marijuana attorney Rob Corry calls "the
worst" in its pursuit of medical-marijuana caregivers, is not alone
in its hunt for marijuana farmers. Across the state, prosecutors in
recent years have pursued more cases than ever against growers who
argue they are within the bounds of Amendment 20. Last year,
prosecutors in El Paso, Jefferson, Denver and Larimer counties - home
to nearly half the state's medical-marijuana patients - tried 72
felony cultivation cases, up from nine cases in 2000.

Part of the issue is public safety, said Lynn Kimbrough, spokeswoman
for Denver District Attorney Mitch Morrissey. She explained a litany
of potential hazards involving the unregulated business of marijuana
growing operations: fire danger from high electrical use and indoor
grow lamps, price gouging, the safety of the product and the
potential dangers facing future residents of a house where marijuana was grown.

"There is no mandate in our office to go out and aggressively
prosecute caregivers or growers, but we are not going to look the
other way," Kimbrough said. "I think (district attorneys) would
welcome some more attention to this because there is a sense that
there is some work that still needs to be done to clarify the process
and perhaps regulate the business aspect and ensure the safety of the
people for whom this law was meant to help."

[sidebar]

COURTS OFFER SOME SKETCHY GUIDANCE ON AMENDMENT'S GRAY AREAS

Attorneys for law enforcement and the medical-marijuana community are
staying busy. Tweaking an amendment to the state constitution is much
more difficult than tinkering with legislation, so guidance is found
in court decisions. In recent years, Colorado's courtrooms have
hosted a few explorations of Amendment 20's gray areas:

Q. To how many patients can one licensed caregiver provide marijuana?

A. Denver District Judge Larry Naves in July 2007 tossed out the
former state mandate of five, ruling the limit set by the state's
department of health lacked public input and "does not appear to be
based on any medical or scientific evidence." So the question is: How
many patients can a caregiver have? The answer, apparently, is more than five.

Q. How many plants can a caregiver tend for each patient?

A. The amendment allows for six plants but also notes that patients
and caregivers can argue that "greater amounts were medically
necessary to address the patient's debilitating medical condition."
That "greater amount" part has been tested in Arapahoe County, where
the district attorney has declined to prosecute a 2004 case involving
one licensed patient growing 12 plants and a 2007 case involving 71 plants.

Q. Do you even need a medical-marijuana license?

A. Maybe just a doctor's note or recommendation is enough, according
to a Gunnison jury in 2006 that acquitted a man of felony charges
leveled by police who found four marijuana plants growing in his
garage. Ryan Margenau did not have a card from the state's registry
program, but he did have a doctor's verbal recommendation to use
marijuana to ease the pain of the 14 herniated discs he suffered in a
car wreck. The jury, in what was Colorado's first medical-marijuana
jury trial, said the doctor's advice was enough.

Q. If police destroy marijuana involved with a medical-marijuana
investigation, do they have to compensate the patient or caregiver?

A. Police in Jefferson County, Aurora, Craig and Fort Collins
reluctantly have returned marijuana-growing equipment and desiccated
plants. The possibility of reimbursement -- at the federal Drug
Enforcement Administration's estimated value of $5,200 per plant --
will be tested in a trio of lawsuits. The not-yet-filed lawsuits in
Huerfano County, Fort Collins and Aurora would demand police pay for
plants seized and destroyed in investigations that ended without prosecution.


Newshawk: Please Write a LTE www.mapinc.org/resource/#guides
Pubdate: Sun, 14 Sep 2008
Source: Denver Post (CO)
Webpage: http://www.denverpost.com/previous2/home/ci_10452384
Copyright: 2008 The Denver Post Corp
Contact: openforum@denverpost.com
Website: http://www.denverpost.com/
Details: http://www.mapinc.org/media/122
Author: Jason Blevins, The Denver Post
Bookmark: http://www.mapinc.org/topic/Amendment+20
Bookmark: http://www.mapinc.org/mmj.htm (Marijuana - Medicinal)

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