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When the justices of the California Supreme Court last month gave medical marijuana users an affirmative defense at trial, they also may have made it trickier for law enforcement officers to make arrests in the first place. That’s the view of medical pot advocates, who say the court, by emphasizing that marijuana arrests need to be made on probable cause, exposed officers to greater liability for civil suits alleging false arrest. “Probable cause has to be evaluated in light of a patient’s claim to be authorized to use marijuana,” says Graham Boyd, director of the national Drug Policy Litigation Project of the American Civil Liberties Union. “I think that means that an arrest of a patient who is bona fide — and has some indication of that — would constitute false arrest at this point under California law, and it would expose the police officer to liability.” Santa Clara University School of Law Professor Gerald Uelmen, who represented the prevailing plaintiff in the Supreme Court’s medical marijuana case, says he thinks Boyd is “right on.” “Clearly,” he says, “if [officers] make an arrest and they’re presented with legitimate medical authorization and the amount is clearly reasonable under the terms of the person’s medical needs, and they go ahead and make an arrest, there’s a potential lawsuit.” While most prosecutorial representatives pooh-pooh the idea as stretching the court’s ruling to proportions unintended, one Southern California lawyer who advises law enforcement officers thinks Boyd and Uelmen have a point. “It’s a hell of a Catch-22,” says Martin Mayer, a partner in Fullerton’s Jones & Mayer. In People v. Mower, 02 C.D.O.S. 6428, the supreme court interpreted Proposition 215, the 1996 initiative that let seriously ill people use marijuana as medicine if recommended by a doctor, to say that it provides an affirmative defense toward having possession and cultivation charges dismissed before or at trial. The July 18 ruling also lets defendants prove legitimate medical use by the fairly low reasonable doubt standard. At one point, the ruling, written by Chief Justice Ronald George, states that law enforcement officers must have probable cause before making any arrest. “Probable cause,” he wrote, “depends on all of the surrounding facts … including those that reveal a person’s status as a qualified patient or primary caregiver.” Those words broaden the impact of the ruling far beyond what appears on the surface, says Boyd, who’s based in New Haven, Conn. “ Mower confirms that a patient who uses marijuana within the scope of Prop 215 has not committed a violation of California law,” he says. “It follows, then, that there could be no probable cause for believing a violation had occurred if all circumstances indicate compliance with the law. “Under Mower,” he adds, “an officer would be barred from deciding to arrest the person, while claiming that the patient was free to assert the Prop 215 defense later.” It’s hard to dismiss Boyd’s theory as just the product of a couple too many joints. The former San Francisco lawyer has been extremely active in the medical marijuana realm, most notably in a 1997 suit accusing the federal government of violating doctors’ free speech rights by threatening to prosecute them or void their prescription licenses if they recommended pot to patients. Even so, representatives of the California attorney general’s office and the California District Attorneys Association strongly disagree with his legal theory. “I am hard-pressed to understand where they would get that sort of reading from the decision,” says Lawrence Brown, executive director of the Sacramento-based DA association. “It strikes me that the court went out of its way to make it clear that there was no immunity problem. “Arresting officers always need to have probable cause to make an arrest anyway,” he adds, “lest they subject themselves to a lawsuit.” Hallye Jordan, of the AG’s office, agrees, saying determining probable cause is an everyday event for officers. “Merely having a piece of paper from a doctor doesn’t automatically make it legal,” she says. “[Officers will] still have to determine whether that’s authentic and whether the user is ill and whether the user is growing it for [himself] or as a caregiver, and not involved in illegal sales.” Fullerton lawyer Mayer, however, says he believes Boyd and Uelmen make a “practical, logical” and “very righteous argument.” As general counsel for the California State Sheriffs’ Association, the California Police Chiefs Association and the California Peace Officers Association, Mayer says he hadn’t thought about the civil consequence. But he agrees that under the ACLU’s scenario, cops could be accused of violating a defendant’s civil rights against unlawful search and seizure — in other words false arrest. “How [is an officer] supposed to know you’ve got a note from your doctor?” the Jones & Mayer partner speculates. “How is the officer supposed to make that judgment call? How much [pot]? How little? How recent a note? Is there a note? On and on and on. “We shouldn’t be putting the street officer into that position,” he says. Boyd believes officers can easily avoid litigation simply by exercising good judgment. “If the conduct appears to fall within the scope of the law, then don’t arrest,” he says. “If there is probable cause to believe that the conduct is illegal, then arrest can be appropriate.” He likens the marijuana situation to a diabetic possessing a syringe, an act that’s illegal unless prescribed by a physician. “A police officer couldn’t just arrest the person and say that the diabetic should prove the validity of the prescription at trial,” Boyd notes. “This contrasts with the situation of an officer faced with a physician’s recommendation that is obviously faked — or, to be more precise, where there is probable cause to believe the recommendation is fake.” Mayer says that kind of scenario presents another problem. Prop 215, he points out, doesn’t require a prescription or anything in writing. “What is going to constitute justifiable proof that it was recommended by a physician?” he asks. That might not be difficult in the extremes, Mayer says, such as deciding to arrest someone possessing a pound and a half of dope or passing on someone with three joints and a note from a doctor. “The cop doesn’t have to worry about the extremes,” he says. “The cop has to worry about the gray area.” Uelmen hopes officers won’t hassle medical marijuana users now that Mower has been decided. “Ask yourself how often it’s happened for unlawful possession of a prescription drug,” he says. “When a police officer finds a bottle of pills and says, ‘Do you have a prescription?’ and the person produces a medical prescription, [the officer is] not going to make an arrest. “It’s a pretty rare event [in those circumstances],” he adds, “where an officer has made an arrest and been subjected to a wrongful arrest lawsuit.”

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