Unauthorized “Arrest, Criminal Liability & Sanctions”
for use of Medical Cannabis in Direct Conflict with Article XIV Patient Protections
by Joani W. Harshman, Esq. contributing writer for the Evolution Magazine ● October 2020
As appeared in The Evolution Magazine, October 2020. Click the logo above to read the original article as it appears in the Evolution Magazine website, page 32
Just one of the many problematic issues in Missouri after legalization of Medical Marijuana is that patients are still subject to “arrest, criminal or civil liability, or sanctions” for possession of marijuana within their legal limits despite the constitutional protections afforded by Article XIV, Sec. 1.5(1).
Raymond Breer is currently facing a Harrison County probation violation for exercising his constitutional right to treat his health condition(s) with medical cannabis. He was issued his Missouri Medical Marijuana (MMJ) Patient License on or about May 26, 2020, before the alleged violation. Upon issuing this medical card by the Department of Health and Senior Services (DHSS), patients are legally allowed to possess marijuana within their possession limits of 8-12 ounces, according to Mo. Const. art. XIV, Sec. 5(1) & 19 CSR 30-95.030(5)(B)1.
On June 18, 2020, the Pennsylvania Supreme Court addressed this same issue regarding a probationers’ use of MMJ while under court supervision in a case brought by multiple individuals on probation As in Missouri, the Pennsylvania Medical Marijuana Act (MMA) contained an immunity provision protecting patients from government sanctions. The local county probation services department’s policy prohibiting “the active use of medical marijuana, regardless of whether the defendant has a medical marijuana card, while the defendant is under supervision,” was deemed to be contrary to the immunity accorded by the MMA. Gass et al, v. 52nd Judicial District, Lebanon County, J-42-2020 (Pa. Super. Ct. 2020).
The County Probation Services in the Gass case asserted “use of medical marijuana conflicts with general conditions of probation and parole. . . which require compliance with all state and federal criminal laws.” The judicial system has historically argued against allowing medical marijuana use for those on probation grounded in the federal illegality of cannabis. Conversely, caselaw from multiple states have noted that the Controlled Substances Act (CSA) only preempts state laws under very limited circumstances. 21 U.S.C. § 903 “The federal CSA does not (and could not) require states to enforce it.” Gass at p.13 (citing Printz v. U.S., 521 U.S. 898, 935, 117 S. Ct. 2365, 2384 (1997) (“Congress cannot compel the States to enact or enforce a federal regulatory program.”)) The Courts have generally held that a state law is only preempted by the CSA if it is “physically impossible” to comply with both state and federal law or if the state law stands as an obstacle to the CSA.
Pennsylvania’s MMA was legalized by legislation containing similar provisions to Missouri’s Article XIV language such as:
● Patient immunity “. . . no such individual shall be subject to arrest, prosecution or penalty in any manner, or denied any right or privilege, . . . solely for lawful use of medical marijuana….” 35 P.S. §10231.2103(a).
● Patient Certification of a serious medical condition from a qualified physician and be issued a valid identification card by the Pennsylvania Department of Health 35 P.S. §10231.103.
● Disqualifying felony convictions for ownership or affiliation with a cultivation, manufacturing, or dispensary facility.
● No legal right to medical marijuana for inmates of a correctional institution.
● No criminal history restrictions to apply for qualified patient status.
In reviewing the MMA’s statutory construction, the Pennsylvania Supreme Court identified specific treatment had been provided for criminal offenders. Nonetheless, these same individuals are otherwise eligible to qualify as patients and afforded the legal right to MMJ in other non-restrictive situations. The Gass case cited an Arizona Supreme Court case, Reed-Kaliher v. Hoggatt, which invalidated probation conditions restricting MMJ use and noted the state’s law “does not deny even those convicted of violent crimes or drug offenses (so long as they are not incarcerated) access to medical marijuana if it could alleviate severe or chronic pain or debilitating medical conditions.” Reed-Kaliher v. Hoggatt, 347 P.3d 136, 139 (Ariz. 2015). In State v. Nelson, the Montana Supreme Court stated that its law “simply does not give sentencing judges the authority to limit the privilege of medical use of marijuana while under state supervision.” State v. Nelson, 195 P.3d 826, 833 (Mont. 2008). See also U.S. v. Jackson, 388 F. Supp. 3d 505, 513 (E.D. Pa. 2019).
Article XIV lists some restrictions on qualified patients. Conversely, there is no limitation to a qualified patient’s right to access medical marijuana for individuals on probation, parole, or under supervision Absent such language, valid patients subject to supervision are entitled to the same constitutional protections from “arrest, criminal or civil liability, or sanctions” as reiterated in numerous Missouri Constitution sections. Respectively, qualifying patients are to be safeguarded from any rule or regulation that would impose an undue burden or undermine the purposes of this section — “to permit state-licensed physicians to recommend marijuana for medical purposes to patients with serious illnesses and medical conditions [and] to make only those changes to Missouri laws that are necessary to protect patients, their primary caregivers, and their physicians from civil and criminal penalties, and to allow for the limited legal production, distribution, sale and purchase of marijuana for medical use.” Mo. Const. art. XIV, Sec. 1.1 & 3(25).
The Canna Convict Project is the reason for my involvement in the Raymond Breer case, whose Probation Violation Hearing is scheduled for Thursday, October 22, at 9 a.m. at the Harrison County Courthouse in Bethany, MO. Those interested in joining the Canna Convict Project at the hearing “for peaceful court support” may attend.
Joani W. Harshman is an attorney at The Harshman Law Firm, LLC. of Kansas City, MO. Harshman provides legal services in compliance with Missouri’s new medical cannabis law and regulations. She also provides needed legal assistance for criminal defense in cannabis law and personal injury. www.harshmanlaw.com.