Is Colorado Trying to Criminalize Medical Marijuana Caregivers?

Is Colorado Trying to Criminalize Medical Marijuana Caregivers?
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Update: The lawsuit described below has been dismissed. Learn more about it in our previous coverage.

Rick Wainwright, whose acquittal in a 2009 criminal case
helped cement the concept that Colorado's six-plant threshold for medical marijuana patients can be expanded, is suing Colorado Governor John Hickenlooper and State Attorney General Cynthia Coffman over a new law that tries to limit large home grows under the theory that they may be part of the illegal gray and black markets for cannabis. Wainwright sees the legislation as a stealth effort to target and criminalize law-abiding MMJ caregivers like him.

"Every step of the way, the State of Colorado has shown that they have zero problems with throwing the medical marijuana community under the bus for the almighty dollar," Wainwright says in describing the reasons he filed the lawsuit, which is accessible below.

In our original coverage of the accusations against Wainwright, published in November 2011, when the matter was finally resolved after what he calls "a two-year court battle," his attorney, Rob Corry, noted that the controversy began "when my client's thirteen-year-old son was caught at school with supposedly 3.5 grams of marijuana that he'd retrieved from my client's ashtray in his room: roaches. And he also had what the prosecution called marijuana paraphernalia — a can pipe like the kind we probably all used in junior high school, made from a Monster energy drink can. But then, the case metastasized from a brief junior-high-school suspension to a felony criminal prosecution in Adams County."

Before long, Corry continued, "they had seven detectives from the North Metro Drug Task Force come to my client's home. He let them in, gave them all the documents showing that he was a caregiver. He was completely open with them, answered all their questions, refused them nothing. And they took clippings from what they allege was 226 plants — although we're not sure if that's the real count, since it's hard to assess what does and doesn't qualify as a plant. And then they prosecuted him in Adams District Court for felony marijuana cultivation and misdemeanor child abuse." The prosecution argued that Wainwright had only nine patients, "because those were the ones the health department was able to confirm. Our position is that he was a caregiver for more, but it ended up not mattering. Because the prosecution didn't have the evidence even with the nine to prove he was growing a medically excessive amount."

Why not? After all, Colorado says state residents are only allowed to have six plants each, which would translate to 54 plants for nine patients — less than a quarter of his total, using the prosecution's calculations. But Corry pointed out that Wainwright "had some very, very sick patients who were using edibles and tinctures and lotions and topicals and various types of concentrates that require more plants to produce, as we established. And we also established that it was healthier for patients. We had testimony from the daughter of a woman who died of breast cancer in February of this year, and she told the jury about her mom rubbing anointing oil on her open, cancerous tumor — and that it was the only thing that gave her relief."

click to enlarge Rick Wainwright on the air for 710 Radio. - FACEBOOK
Rick Wainwright on the air for 710 Radio.
In addition, Corry explained, "the jury also heard from patients in wheelchairs, elderly people suffering from severe medical problems. It was very moving testimony, and it showed what a giving person Rick is. The task force didn't find any cash — it was a pretty modest, home-based operation. And they didn't find an ounce of finished product, because everything he was producing, his patients grabbed it right up." As such, the jury found Wainwright not guilty on all charges.

The decision wasn't unprecedented: Jason Lauve, who broke his back snowboarding in 2004, had previously been cleared of Boulder County allegations that he'd possessed too much weed — two pounds, two ounces — based on the "medically necessary" line in Amendment 20, the 2000 measure that legalized MMJ in Colorado. But Corry saw it as further establishing the notion that "the Colorado constitution applies statewide," including Adams County, which he called "one of the three or four worst jurisdictions in the state as far as medical marijuana is concerned, in terms of waste of taxpayer resources and relentless pursuit of people who are not criminals."

Six years later, Wainwright fears that two new laws, originally known as House bills 1220 and 1221, will unleash another persecution spree on caregivers like him: "In 1220, it says they can make you a level four felon for going over six plants — which is directly in conflict with what Amendment 20 says. They don't care if you're a caregiver or a patient. If you're caught growing more than six plants, you'll be in trouble."

Actually, 1220, which contains the meat of the tandem measures, specifically offers a nod to cases like Wainwright's, stating that "although the authority for marijuana cultivation for both medical and recreational marijuana is generally limited to six plants per person, some provisions allow individuals to grow more plants. In the medical marijuana code, a patient can grow an 'extended plant count' if his or her physician, who makes the medical marijuana recommendation, also determines the patient has a medical necessity for more than six plants. As well, a primary caregiver can grow medical marijuana for each of the patients that he or she serves."

Immediately thereafter, though, the text lays out a litany of ills allegedly created by sizable grows, including overburdened electrical systems, water damage, mold and "a noxious smell that limits the ability of others who live in the area to enjoy the quiet of their homes." Moreover, 1220 maintains that "large-scale, multi-national crime organizations have exploited Colorado laws, rented multiple residential properties for large-scale cultivation sites, and caused an influx of human trafficking and large amounts of weapons as well as the potential for violent crimes in residential neighborhoods. Large-scale cultivation sites in residential properties have been used to divert marijuana out of state and to children. Therefore, the general assembly determines that it is necessary to impose reasonable limits on residential marijuana cultivation that do not encroach on the protections afforded Colorado citizens in the Colorado constitution."

With that in mind, 1221 sets punishment for possessing more than six plants without proper patient paperwork at a level 1 drug misdemeanor, between six and thirty plants at a level four drug felony, and more than thirty plants at a level three drug felony.

click to enlarge Reverend Brandon Baker accompanied Rick Wainwright to file the lawsuit. - FACEBOOK
Reverend Brandon Baker accompanied Rick Wainwright to file the lawsuit.
Just as problematic in Wainwright's view is the section of HB 1221 that funds enforcement of 1220 by "awarding grants under the gray and black market marijuana enforcement grant program" in the amount of $5,945,392 for the 2017-2018 fiscal year. The text adds that "the department of local affairs shall give priority to local governments in rural areas that have limited law enforcement resources."

As Wainwright sees it, this approximately $6 million will motivate localities to target legitimate medical marijuana providers along with the sort of scofflaws driven to divert cannabis over state lines: "They're lumping caregivers and private growers into what they call the gray and black market. So the medical marijuana community is being treated like they're part of illegal activities when we're just trying to take care of patients."

On top of that, the grant money will be "available to Colorado Law Enforcement exclusively and immediately on July 1, 2017," even though 1220 doesn't go into effect until January 1, 2018, six months later, Wainwright's suit allows. For that reason, he considers 1221 to be an appropriations bill mislabeled as a grant, and he wants the Colorado Supreme Court to rule on whether or not that's legal.

Wainwright, who was accompanied to the courthouse on June 23 by fellow marijuana advocate Reverend Brandon Baker, filed his complaint as a private citizen, but he'd love for an attorney to take up the case alongside him, especially since he feels medical marijuana caregivers, cultivators and patients are at severe risk under the new laws.

Because recreational cannabis taxes are higher than medical marijuana, "they want all the patients to go to the rec side," Wainwright says. "This is another way they're trying to do that — by criminalizing people are supposed to be protected by Amendment 20 of the Colorado constitution."

Click to read Wainwright v. Hickenlooper and Coffman.
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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts