ACLU seeks to overturn Fresno ban marijuana growing

FRESNO, Calif. (KFSN) -- Growing marijuana anywhere indoors or outside, in the city and county of Fresno is illegal under local ordinances. But the ACLU says those ordinances violate the state law which allows patients who need medical marijuana to grow their own. The suit was filed in Fresno County superior court this week.

"This would be one of the first lawsuits to challenge a complete ban on cultivation for seriously ill patients."

ACLU Attorney Novella Coleman argues the city and the county cannot override laws approved by the legislature and voters.

Coleman explained, "They cannot come in after the fact and limit the rights of voters under state law so this is a conflict between local law and state law."

But citing the violence surrounding some outdoor marijuana growing operations and home invasion robberies connected to indoor growing, Fresno County Supervisor Henry Perea says the county believes a total ban on indoor and outdoor growing is needed to protect public safety.

Perea explained, "Right now the county believes its ordinance is defensible and we are prepared to go to court and make that case."

ABC 30 Legal Analyst Tony Capozzi believes the bans will be tough to fight.

"I think it's an uphill battle for the ACLU to win this case," said Capozzi. "There's already case law from Los Angeles area in the court of appeals that has already allowed local governments to control the amount of marijuana that can be grown or to ban it."

But the ACLU maintains this case is different because it asserts the city and county do not have the power to override state law, which clearly allows medical marijuana patients to grow plants.

The city of Fresno may already be softening its approach. A city council subcommittee is working on a measure to allow patients to grow four plants, indoors. But for now, the ban remains.