QUESTION: Rob, I am a primary caregiver who grows and provides medicine to a few patients, for no profit, because my patients are sick and I enjoy growing as a hobby. Should I register my status as a caregiver and grow location with the Medical Marijuana Enforcement Division?
--Bobby Ballast, Breckenridge, Colorado.
Bobby, it might make some sense to re-phrase your question in a manner that clarifies the issues, how about this: “Rob, I am a defenseless, unarmed, fluffy little lamb who peacefully grazes alone in the grass. Should I travel into the wolves’ lair and inform the hungry pack of sharp-toothed wolves where I will be grazing in the future?”
All kidding aside, the answer to the question depends on the unique facts of your own personal situation and individual risk tolerance, but the legal issues are in tension, as with so many other things in the world of Medical Marijuana. The starting point for the legal analysis is the Colorado Constitution, Article XVIII § 14, which provides that all information related to your status as a primary caregiver is confidential. Any person, including the State of Colorado Medical Marijuana Registry and the Medical Marijuana Enforcement Division (“MMED”), is required to maintain this confidentiality unless waived by a patient or caregiver by the act of presenting a registry card or its functional equivalent. C.R.S. § 18-18-406.3.
Colorado House Bill 10-1284 purports to require primary caregivers to register their grow location with the Medical Marijuana Enforcement Division. C.R.S. § 25-1.5-106(7)(e). But this statute cannot override the confidentiality provided by the Colorado Constitution, which trumps all conflicting statutes. And the practical question is whether the MMED can be trusted to maintain this confidentiality, when these self-described “auditors with guns” have demonstrated a consistent propensity for arbitrarily picking the players in the for-profit medical marijuana industry, and a consistent hostility to the unregulated, untaxed free citizens who function as caregivers?
Like Pablo Escobar and other drug kingpins, the MMED’s blessing and good graces are a threshold requirement to enter into and participate in the for-profit industry. The outgoing shot-caller of the MMED took a controversial public position in favor of for-profit sellers and against smaller non-profit caregivers. Not coincidentally, the for-profit sellers pay thousands in licensing fees to the MMED, and exist only due to MMED’s approval and under MMED’s constant supervision. MMED has even instituted its “tipline,” where licensees can snitch on caregivers or each other, making real or fake allegations, probably ensuring perpetual conflict and discord within the industry, a cynical “divide and conquer” strategy whereby the MMED benefits.
MMED itself also acts as an informant, snitching to the U.S. Drug Enforcement Administration (“DEA”) identities of Centers and grows that fail to genuflect sufficiently to the MMED. A recent federal raid on a Center applicant was
reportedly initiated and supported by MMED. The MMED will also furnish its records to “any” law enforcement entity “on demand.” Although the general public is not permitted to access caregiver records submitted to the MMED, persons who submit any records to MMED have no confidentiality of any record as to law enforcement agencies.
The MMED intentionally pits Center licensees against caregivers, picking out what it views as “good” growers against “bad” growers. Some Center licensees may even buy into this cynical strategy, and actively attempt to curry favor with their powerful regulators by uprooting caregivers. Fortunately, the majority of Center owners and employees are caring individuals simply too busy to hate.
Interestingly, the federal government takes the opposite position of Colorado’s MMED. Two U.S. Department of Justice memoranda (the Ogden Memo of October 2009 and the Cole Memo of June 2011) discuss and contrast large-scale commercial operations with small-scale caregiver gardens, and both memos indicate the federal government favors the latter, specially mentioning “caregivers” as acceptable to the federal government.
Strangely, the federal government, at least in word if not in deed, seems friendlier to primary caregivers than Colorado’s own governmental sector devoted to medical marijuana enforcement.