The Colorado General Assembly went beyond the state constitution in creating another condition a person must satisfy to defend themselves against medical marijuana crimes, the Court of Appeals decided on Thursday.

A three-judge panel found a Mesa County judge correctly declined to instruct a jury that a defendant’s cannabis grow was legal only if it took place in an enclosed and locked space, noting that this legislatively-added stipulation “cannot trump the constitution.”

Daniel P. Rubinstein, the Mesa County district attorney, was disappointed the Court of Appeals had not explicitly resolved the question of the law’s constitutionality, but found the opinion useful in clarifying to police officers that growing in an unenclosed or unlocked space was not a sole basis for arresting someone. However, Rubinstein believed the legislature was allowed to impose further restrictions on cannabis cultivation beyond what the text of the constitution allows.

“In the U.S. Constitution, for example, you have the right to possess firearms, but we don’t allow you to bring them into the courthouse. It’s a bad idea for people to show up to their divorce hearing with a gun,” he said. “It’s not like there isn’t some reasonable regulatory scheme.”

In 2012, voters legalized medical cannabis, inserting language into the state constitution that permitted an adult to defend themselves against charges related to medical cannabis under three conditions. First, a physician must diagnose the patient as having a debilitating medical condition. Second, there must be a determination that the patient may benefit medically from the use of cannabis. Finally, the patient or a caregiver must not possess amounts of marijuana that exceed the limits on weight or the number of plants.

In 2016, for public safety and health reasons, the General Assembly added another restriction: that the cultivation take place “in an enclosed and locked space.” There were further requirements for caregivers to maintain a list of patients and possess a registration card.

Last year, a Supreme Court committee that reviews criminal jury instructions examined whether jurors, in deciding the validity of a marijuana grower’s defense, may also find that prosecutors proved the cultivation did not happen in an enclosed and locked space. The committee said no, “because the constitutional defense applies regardless of whether the space is enclosed or locked – and because the statute cannot constitutionally narrow the breadth of this defense.”

The appellate panel agreed, with Judge Michael H. Berger concluding in the court’s May 13 opinion that “the district attorney has not cited, and we have not found, any case that authorizes the legislature to substantively dilute rights expressly granted in the constitution.”

In the case under consideration, David Lawrence Cox was growing medical cannabis in his partially-enclosed backyard, along with multiple tons of industrial hemp. Cox said he was a “primary caregiver,” which the General Assembly has defined to include people who cultivate marijuana for patients. Police searched his property in October 2017, and prosecutors charged him with multiple felony offenses and two misdemeanor child abuse counts.

“I had followed the directions clearly published on the Mesa County Sheriff’s website for a grow just like mine,” Cox told Colorado Politics.

Cox, whom 9News described as a Palisade peach grower and 9/11 conspiracy theorist, represented himself at trial and a jury acquitted him of the marijuana offenses. Mesa County District Court Judge Brian J. Flynn declined prosecutors’ request to tell the jury Cox had to prove the additional elements of his grow operation beyond the three conditions in the constitution.

Mark A. Herber, Cox’s lawyer for the appeal, said it has been unclear for some time how the three constitutional conditions for defending oneself against marijuana cultivation charges square with the legislature’s added elements.

“The biggest issue I’ve heard throughout the years is enclosed and locked space,” he said.

Prosecutors appealed the decision to the state Supreme Court, which decided against taking up the question of the law’s constitutionality. The district attorney’s office then turned to the Court of Appeals for clarity.

“There is no case law preventing a reasonable precondition on a constitutional right. To the contrary, this can and is often done, on virtually every other fundamental right. You cannot shout fire in a crowded movie theater,” argued George Alan Holley II, the senior deputy trial district attorney in Mesa County, to the appeals court. He added that the judiciary presumes laws passed by the General Assembly are constitutional.

The appellate panel countered that nothing in the constitutional provision about medical marijuana empowered the legislature to place additional restrictions on a person’s defense against criminal charges.

Stan Garnett, a former district attorney for Boulder County, said the state constitution’s built-in defense for medical marijuana offenses is fairly unusual. He explained that because the Supreme Court and Court of Appeals did not strike down the law as unconstitutional in Cox’s case, the decision served to put prosecutors on notice that they could not seek any additional restrictions on a person’s defense at trial.

Rather than a declaration of unconstitutionality, “there may be a finding that it can’t be applied or it’s not workable,” said Garnett.

Cox has also been a Republican congressional and state legislative candidate, and argued at trial that his prosecution was politically motivated.

The case is People v. Cox.

This article has been updated with Cox’s comments about his grow operation.