On April 7th, 2015, the Arizona Supreme Court ruled on not just one, but two cases, regarding medical cannabis patient’s right to consume and possess on probation.
One of which was based out of Cochise County. In REED–KALIHER v. The Honorable Wallace R. HOGGATT, the Superior Court judge, did not take into account the Arizona Medical Marijuana Act’s broad immunity provision, states:
A.R.S. § 36-2811(B), “[a] registered qualifying patient. . . is not subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege. . . [f]or . Medical use of marijuana pursuant to [AMMA],
Due to this provision A.R.S. § 36-2811(B), in the AMMA, Reed-Kaliker opposed a new stipulation set forth by his probation officer, which was, “not to possess or use marijuana for any reason.”
The other case that sought protection under the AMMA’s immunity provision A.R.S. § 36-2811(B) was the Honorable Judge Hancock against Yavapai County Attorney, Petitioner Sheila Polk, in POLK v HANCOCK. In this case Polk, the county attorney, attempted to add a blanket clause to all probation terms in her County. Which was:
“Defendant shall not buy, grow, possess, consume, or use marijuana in any form, whether or not Defendant has a medical marijuana card issued by the State of Arizona pursuant to A.R.S. § 36–2801, et seq. (or its equivalent under another state’s law).”
As a result of the immunity provision in the Arizona Medical Marijuana Act A.R.S. § 36-2811(B) imposing a condition against the terms of probation inhibiting lawful medical marijuana use such as in POLK v HANCOCK and in REED–KALIHER v HOGGATT is null and void.
This is shown by the Supreme Court siding in favor of the AMMA, stating,
¶14. “We therefore hold that any probation term that threatens to revoke probation for medical marijuana use that complies with the terms of AMMA is unenforceable and illegal under AMMA”
REED–KALIHER v HOGGATT No. CV-14-0226-PR SUPREME COURT OF THE STATE OF ARIZONA
This is the same immunity provision and Supreme Court ruling that has ended with the Maricopa County Sheriff’s Office in some hot water.
On Dec 10th, 2019, Ktar reported on an issue of MCSO/ Maricopa County Sheriff’s Office not responding to a public records request about the department’s policies regarding medical cannabis patients’ enrollment in the work-release program. The ACLU filed the original request in August and then sent a follow-up in November. MCSO, still has not replied to the request, which has led to a lawsuit.
(FYI- MCSO does not have a fund for lawsuits, and costs come from the taxpayer’s pockets.)
Jared Keenan, attorney for the ACLU criminal justice department argues, “that Sheriff Paul Penzone cannot prevent nor punish medical cannabis patients from medicating while on work release,” as stated by KTAR. Keenan also disclosed to KTAR that a handful of medical cannabis patients have had their work release “privileges” revoked for testing positive for THC in tests performed by MCSO.
Jesse Conboy is one of those medical cannabis patients who lost their work-release privileges. One month into successfully finishing his six-month jail sentence in work release, Jessie tested positive for THC.
Keenan told KTAR that testing positive for THC should not be a prerequisite for removal from the program at all. He goes on to state, “The (Arizona) Medical Marijuana Act … has a sweeping immunity clause that immunizes patients against penalty in any manner, which is quite broad, and also forbids the state and any state actor from denying a privilege, which work release would be, for their lawful use of medical marijuana,”
KTAR reached out to MCSO’s Sheriff Penzone, and the Maricopa County Attorney’s Office responded on his behalf stating that “Penzone made that choice to provide the best environment for inmates.”
Defending, Sheriff Penzone, further, Deputy County Attorney Joseph Virgil, also added, ” the Sheriff has ‘exclusive’ authority to operate county jails and the programs provided for those inmates, and that courts have recognized the Sheriff’s role in determining which inmates are eligible for work release.”
Legal Director for Arizona NORML, Tom Dean said, ‘While the Sheriff has wide latitude in regulating an inmates’ behavior while they are incarcerated in the jail, he does not have the authority to restrict the lawful medical use of marijuana by patients who have been released or furloughed for employment. He is not above the law and certainly not above the Supreme Court.”
Dean filed a joint amicus brief with the Supreme Court, (on behalf of NORML), with the AACJ (Arizona Attorneys for Criminal Justice), in Reed-Kaliher v. Hoggatt. As well, Dean also filed another amicus brief, again on behalf of NORML, in Polk v Hancock.
An amicus brief, or “friend-of-the-court” brief is filed by a person with a strong interest in the subject matter of a lawsuit, but who is not a party to nor directly involved in the litigation. The purpose of this amicus brief was to address the policy issues of medical cannabis patients on probation in Arizona.
Tom Dean and Jared Keenan, have worked together before to defend the AMMA. They both agree that medical cannabis patients have more of protection to cannabis under the AMMA, than if it was a normal prescription from a doctor.
Dean elaborating says,”there is no law that protects the use of prescription drugs like the AMMA does for the medical use of marijuana.”
If MCSO responds to the ACLU’s request, a lawsuit over a policy change could still be underway. If a Maricopa County Superior Court judge agrees with Keenan and Dean, it’s questionable if the Maricopa County Sheriff’s Office appeals to the verdict. This is because as of right now, other County Jails in Arizona, might have the same policies as MCSO, and they might not be too eager to change that.
As this community has seen before once a case is ruled on in the Court of Appeals, it becomes law. Only the Supreme Court can override the Court Of Appeals, and that is if the Supreme Court decides to hear the case.
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