Medical pot law trumps Anaheim

October 01, 2007

EDITORIAL, Orange County Register (CA)

Superior Court Judge David Thompson last Friday essentially punted the issue of whether the city of Anaheim's law that essentially bans anything that remotely resembles a medical marijuana dispensary is in conflict with state law. Qualified Patients Association, an association of medical marijuana patients and caregivers, had challenged the law and sought an injunction against its enforcement.

Judge Thompson denied the injunction, sidestepping a number of pertinent issues. The real challenge to Anaheim's law will come in court in about five months, but it won't be in Judge Thompson's court.

It is unfortunate that the injunction on behalf of patients was denied, but it is unlikely that Anaheim's law will survive a court challenge. It is clearly in conflict with state law. Given that cities are subdivisions of the state under the California constitution, it is simply irrelevant that marijuana is prohibited under federal law. While state and federal law enforcement agencies may sometimes cooperate, the primary duty of state law enforcement agents is to enforce state law, not federal law.

State law is clear on the issue of medical marijuana. Section 11362.5 of the Health and Safety Code contains the language of Proposition 215, passed by voters in 1996, which carves out an exception to state marijuana prohibition laws for qualified patients and their caregivers. Senate Bill 420, which is Section 11362.7 of the code, among other things expanded the definition of caregiver and provided guidelines for the number of plants a qualified patient can have under cultivation.

Both laws declared that their intent was to encourage and expand access to medical use of marijuana by sick people in a safe and controlled manner. Anaheim's law, which defines a dispensary as anyone who provides marijuana to more than one patient and outlaws them within the city, clearly does the opposite, severely restricting safe access by qualified patients.

The city said it passed the law because of problems associated with a particular dispensary in the city. An armed robbery and illegal drug use occurred there, city officials said. But Qualified Patients, the group challenging the law, had come into existence without the city being aware of it, largely because it was not creating law-enforcement problems. How much sense did it make to forbid dispensaries, when one was operating without creating problems for law enforcement?

Anaheim's law may be legal – at least for now. But it is unwise and mean-spirited. It richly deserves to be overturned.



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