The arrests of Joseph Lightfoot and Amber Wildenstein, both 29, on one count apiece of child abuse raised eyebrows in the medical marijuana community. After all, the charges against Lightfoot and Wildenstein are based solely on them growing marijuana in their home -- something they're authorized to do because of his status as a caregiver.
According to Lynn Kimbrough, spokeswoman for the Denver District Attorney's Office, the investigation into Lightfoot and Wildenstein began with "a domestic violence call. I think it was another family member who'd called the police and said, 'They're fighting. I can hear the kids. Can you check it out?'"
In the end, police determined that "it had only been a verbal argument, so no domestic-violence crime had been committed," Kimbrough continues.
That means the child abuse charge is solely due to the presence of a marijuana grow in the home. As Kimbrough points out, Colorado Revised Statute 18-6-401 states that "a person commits child abuse, if, in the presence of a child, or on the premises where a child is found, or where a child resides... the person knowingly engages in the manufacture or attempted manufacture of a controlled substance."
Lightfoot had the legal right to grow marijuana. As Kimbrough notes, "he has his paperwork from the medical marijuana registry, and paperwork that he is a caregiver."
But that doesn't mitigate the offense in the view of the DA's office.
"This is what's on the books right now," Kimbrough says. "It's state law, and we don't pick and choose the laws we enforce and prosecute. We have an obligation to go forward with what's on the books, and marijuana is a controlled substance."
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That's not the way Sensible Colorado's Brian Vicente sees it. While the attorney isn't representing Lightfoot or Wildenstein, he sees their case as worrisome.
"Fundamentally, we encourage parents and caregivers to keep a real firewall separating minors, their children, from medical marijuana," he says. "But at the same time, marijuana is less harmful than alcohol or just about any prescription drugs out there. So this charge is not reflective of reality.
"What's the actual danger here? You've got people who are ostensibly following state law. They have the proper paperwork to lawfully engage in this action. So for the DA's office to be wantonly prosecuting them for doing this in their home, it's concerning."
Given the way the law currently reads, Vicente thinks a legislative solution may be in order -- "but I also think the right to grow marijuana in your home is enshrined in the Colorado constitution, and that's the highest law in the state. So I feel that, barring any exceptional circumstances, that should be the trump law we turn to in these cases."
The licensing situation during the transition period from the passage of HB 1284, the bill to regulate the medical marijuana industry, to its formal implementation only adds to the confusion, Vicente believes.
"Currently, the license for a grow operation would be exactly the same thing as having a red card," he notes. "In terms of the commercial side, cities and the state are starting to deal with this issue, but in Denver, at least, they have not issued such a license yet. But that doesn't mean these activities aren't protected under state law."
For her part, Kimbrough hopes members of the medical marijuana community will familiarize themselves with the statute being used against Lightfoot and Wildenstein.
"This isn't a new law, but I guess what may be new are some of the circumstances," she says. "Maybe there is some public awareness that needs to take place. On that front, having this discussion and having people become aware of exactly what the law is would be a good thing."
Vicente agrees that it's important to "really separate children's lives from the medicine in the same way you would with a bottle of vodka or a prescription of Xanax. And we're continuing to educate people on that topic."
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Still, he hopes this case doesn't signal a new wave of child abuse charges against medical marijuana patients and caregivers with legal home grows who also have kids.
"People in all walks of life get sick -- anyone from parents to grandparents," he points out. "And I think we need to encourage the DA's office to use discretion, and not penalize people for being ill."
Here's the DA's office release on the arrest:
PARENTS GROWING MARIJUANA CHARGED WITH CHILD ABUSE
Denver District Attorney Mitch Morrissey has formally charged a man and woman with child abuse, accusing them of running a marijuana growing operation in their home where they lived with three children.
Joseph Daniel Lightfoot (dob: 07-09-80) and Amber Brooke Wildenstein (dob: 04-26-81) are each charged with one count of child abuse (F3).
Colorado Revised Statute 18-6-401 states in part that a person commits child abuse, if, in the presence of a child, or on the premises where a child is found, or where a child resides... the person knowingly engages in the manufacture or attempted manufacture of a controlled substance.
The charges allege that Lightfoot and Wildenstein have been operating a licensed marijuana growing operation in their home in the 2600 block of S. Williams Street in which three children, ages 7, 9, and 11 also resided. The charges are the result of a Denver Police Department investigation that began in early June when police were originally called to the home on a report of domestic violence.
Lightfoot and Wildenstein have been released from custody on $50,000 bond each. Lightfoot is scheduled to appear in Denver County Courtroom 2100 on July 13, 2010 at 1:30 p.m. to be advised of the charge. Wildenstein will appear the following day, on July 14, 2010, at 1:30 to be advised.