By now most everyone is familiar, at least to a degree, with the fact that case law in Florida has established a medical necessity defense against prosecution for the cultivation and possession of marijuana when it is used to treat a debilitating medical condition. This ruling, which was handed down in 1991 by the Florida Court of Appeals, cleared the conviction of Ken and Barbara Jenks, who were growing their own medical marijuana in order to treat the symptoms of AIDS. Because of their success in this case Ken and Barbara went on to become the first AIDS patients in the U.S. government’s Investigational New Drug Program (IND) to receive marijuana from the government.
Like it or not Florida is on a collision course with medical marijuana
According to an excellent blog post by Jared Beck, who is managing partner at a law firm in Miami, the Florida Court of Appeals allowed the use of the defense of necessity, as it exists in common law, because all three of these necessary elements were met:
- The defendant did not intentionally bring about the circumstance which precipitated the unlawful act
The Jenks did not intend to contract their medical condition
- The defendant could not accomplish the same objective using a less offensive alternative available to the defendant
There was no treatment other than cannabis which could effectively relieve their symptoms
- The evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it
If their symptoms could not be controlled, the Jenks’ lives were in danger
Proving points one and three, Beck says, should be fairly straight forward. It is point number two which will likely require the most attention for a successful medical necessity defense in Florida, though it should not be nearly as difficult to accomplish in 2015 as it was in 1991.
The longer the prohibition on cannabis persists in Florida, the more likely it is that cannabis patients will assert the medical necessity defense in the event of prosecution. And as time goes on, the likelihood of prevailing on such a defense will increase in any given case, given the accumulation and expanding availability of evidence showing the advantages of cannabis in contrast to alternatives. The availability of the medical necessity doctrine therefore presents the potential for de facto legalization of medical cannabis in Florida on a judicial, ad hoc basis.
Round 2 for John Morgan
Back in November John Morgan, Head of Citizens United and primary promoter of Florida’s Amendment 2, vowed he would return to the trenches in an attempt to revitalize the effort in 2016. And return he has. On Thursday Mr. Morgan filed a revised version of his original proposal with the Florida Secretary of State’s office, though it does differ in substance from Amendment 2. Newly crafted language now lists 10 debilitating conditions that could be treated with medical marijuana, including Post-Traumatic Stress Disorder, or PTSD, epilepsy, cancer, glaucoma, ALS, Crohn’s disease, Parkinson’s, multiple sclerosis and HIV/AIDS.
Fifty-eight percent of Florida voters in the November election cast ballots in favor of medical pot, just short of the 60 percent required for passage of a constitutional amendment in the state. That’s a good starting point, and Morgan is confident he has learned enough from past mistakes to prevail in 2016.
A date with destiny
Though it is not clear exactly how long it will be before medical marijuana is legal in Florida, it seems now to be only a matter of time. More people voted for Amendment 2 in November than voted for incumbent Governor Rick Scott, so it’s clearly not a question of whether or not the people of Florida want medical marijuana. The question is how hard is the government willing to fight to prevent it? As for the medical necessity defense, it only takes one police officer and one prosecutor willing to make a name for themselves, and given the wacky nature of local government enforcement in various parts of Florida it seems pretty likely that we will see a medical marijuana case brought to trial sometime before the 2016 election, so it’s possible that John Morgan might be able to save the next $5 million for something else, like a giant ganja farm.