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Medical marijuana grow isn't child abuse any more than having a liquor cabinet, attorney says

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Update: Joseph Lightfoot was originally charged with felony child abuse for a legal medical marijuana grow simply because he had three kids living in the home where he was cultivating. The count was later bumped down to a couple of misdemeanors, to which Lightfoot pleaded guilty -- a decision his attorney, Daniel Murphy, wishes could have been avoided. In his view, "the case never should have been brought," because it's based on a fallacy.

In our original version of this post, on view below, Denver District Attorney's Office spokeswoman Lynn Kimbrough revealed that the felony count was amended in part because the statute under which Lightfoot was initially charged had originally been written with meth houses in mind -- hence the use of the word "manufacture." After further analysis, she said DA personnel determined that he should face misdemeanor counts from the same statute, which maintain that abuse takes place if a parent or guardian "permits a child to be unreasonably placed in a situation that poses a threat of injury to the child's life or health."

As for Murphy, he points out that the DA's office only changed its mind about the felony charge after he filed a motion attacking the use of the meth-related language against his client. "Medical marijuana was approved by voters in 2000," he says, "and this amendment to the child abuse law came out a few years later, at a point when medical marijuana was legal. It used all these methamphetamine terms, like ephedrine and pseudoephedrine and isomers, but it didn't say anything about cultivating marijuana. And they didn't add 'cultivation' when they revised it again the next year. So it was clearly a complete misapplication of the statute."

What about the argument that an MMJ grow creates a threat to children? "I think that's highly questionable," Murphy says. "There's no science behind the assertion that, for example, a child could ingest part of a plant and it would be extremely harmful to them. Of course, we don't want kids eating marijuana plants, but it's probably less harmful than if they ingested Comet or bleach -- and people aren't being charged with child abuse for having that in their house.

"Child abuse is putting your child in a position of danger. If you go to a bar or a strip club and leave your kid in the car for four hours, that's child abuse. But operating a legal marijuana grow in your basement, where the doors are shut and the children are instructed not to go down there, I don't think that rises to child abuse."

Besides, growing medical marijuana is "a legal endeavor," he emphasizes. "So it's like having a liquor cabinet. You can't go around charging everyone who has a liquor cabinet or Drano underneath their sink or a legally purchased firearm with child abuse based on a potential threat. And they have no scientific basis for claims about a threat based on mold or the ubiquitous home-invasion argument."

As spokeswoman Kimbrough concedes, there was no evidence of injury in regard to Lightfoot's children -- which isn't surprising given a recent Canadian study, which found that kids of marijuana growers are typically in better health than their peers.

So why was Lightfoot charged in the first place? "I think this started with the cops," Murphy says. "Certain police agencies don't like medical marijuana laws, and I think this is one of those cases. It was clearly overcharged, and he only pleaded to a class 2 misdemeanor because he didn't have the resources to fight it. Now, do I wish he didn't get sixty days of home detention?" he asks, referencing the sentence handed down by Judge Andre Rudolph. "Of course. I know the judge gave it careful consideration. But I don't think it ever should have been charged originally, and it's just unfortunate that Mr. Lightfoot got caught in the political switches."

Moreover, Murphy fears the same thing could happen to others in Lightfoot's situation. "I'm sure some district attorneys will try one way or another to encroach on this constitutional right little by little," he warns. "So it's up to the legislature and the medical marijuana lobbyists to strike the right balance. Because this is kind of a dark cloud on the horizon."

Page down to get the DA's office take on the ruling. Original item, 10:38 a.m. August 2: Last year, medical marijuana caregiver Joseph Lightfoot was charged with felony child abuse for having an MMJ grow in a home where young children lived. In the end, prosecutors dropped the felony allegation in favor of two misdemeanor child abuse counts -- and while Lightfoot pleaded guilty to the latter, a judge suggested the initial approach was over the top. What's the Denver DA's office got to say about that?

"The original filing decision was based on the facts of the case that were presented at the time," says spokeswoman Lynn Kimbrough. "When we looked at the review of the facts in light of the statute, we filed those charges in good faith. But every case we file, as it makes its way through the process, is continually evaluated -- and it's not uncommon for us to amend charges."

As Kimbrough told us last year, cops were called to the home of Lightfoot and his significant other, Amber Wildenstein, on suspicion of domestic violence. In short order, officers determined that the pair had merely been in a verbal argument. Hence, no domestic-violence crime had taken place. But cops noticed the marijuana grow, and while Lightfoot's paperwork was in order, he and Wildenstein were busted due to the presence of three children nearby under Colorado Revised Statute 18-6-401, which 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."

Today, Kimbrough says the charge was lessened due largely to a reconsideration of the term "manufacture" in the passage above. "That word was actually geared more toward children being in or around a meth house," she notes. "And there was a lot of further discussion about that after we filed the original charges. We got to a point where further evaluation of the facts, and further evaluation around the legal definition of 'manufacture,' led us to a place where we weren't certain we could prove that to a jury."

As a result, the case was refiled under a different section of the same child-abuse statute, which says that a person commits a misdemeanor if he "permits a child to be unreasonably placed in a situation that poses a threat of injury to the child's life or health."

Does a medical marijuana grow really create such a threat to a child? Kimbrough says the folks involved in the case answered that question in the affirmative, even though no injury to the kids was documented. "There was a very strong feeling of concern for the care and safety of the three young children in the home," she says.

Judge Andre Rudolph shares those worries. As quoted in the Denver Post, he told Lightfoot that he needed to make better decisions. But the Post reports that Rudolph denigrated the original felony charge, as well as the implication that Lightfoot deserved to serve time in jail for his offense. Instead, Lightfoot was given a year's probation and sixty days of in-home detention, as well as an order to attend a parenting class.

At this point, District Attorney Mitch Morrissey hasn't weighed in about whether he thinks a new child-abuse statute should be created specifically with medial marijuana in mind. But the Lightfoot case makes it clear that, in the eyes of the law, an MMJ grow and a meth house are not equal.

More from our Marijuana archive: "Joseph Lightfoot, home med. marijuana grower accused of child abuse, a good dad, attorney says."

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