Pot Case Filed

October 09, 2007

Nuz, Columnist, Metro Santa Cruz (CA)

Within the next month, the Wo/Men's Alliance for Medical Marijuana (WAMM), along with the city and county of Santa Cruz, will be back in the San Jose District Federal Court arguing for an injunction against federal agents entering their land. This suit is a "rebriefing" of a suit that was filed on July 12 of this year, which also sought damages for a 2002 raid by Department of Drug Enforcement (DEA) officers on WAMM's Santa Cruz collective marijuana garden.

The case has had a thorny legal history. On Sept. 1, WAMM won a pre-emptive prosecutory application of the medical necessity defense from the court, which essentially warns the DEA that if it comes back to WAMM's garden again it'll be seen as harassment of legally protected medical marijuana users. However, there was no decision against the DEA, because the plaintiffs had not established a pattern of aggression against WAMM, and the rest of the case was put on hold.

After that judgment the lawyers for the plaintiffs reworked their briefs and by early October they were ready to walk back into court, this time with the 10th amendment of the U.S. Constitution in hand. This amendment reserves powers "not delegated to the United States by the Constitution, nor prohibited by it" for the states or the people.

Lawyers for the plaintiffs will argue that the federal government is illegitimately trying to prevent the state of California from applying its Compassionate Use Act, voted on by "the people" and implemented by "the state" in 1996, by consistently raiding legal medical marijuana distributors and blocking efforts by Santa Cruz and others to set up an ordered system to identify legitimate medical needs and safely provide users with their medicine.

The Santa Cruz City Council voted in October 2005 to create a Compassionate Use Office to distribute marijuana to patients who had received a doctor's prescription. WAMM co-founders Valerie and Mike Corral were among those deputized to carry out this function as city officials.

Ben Rice, one of the attorneys representing the county, believes there is a clear goal behind the actions of the federal government: to create enough confusion that California lawmakers will be forced to declare all marijuana illegal again because regulating the plant and clearly identifying legitimate medical users is too difficult.

"The raids all across the state make it hard for legislators to determine who is and who isn't qualified to receive medical marijuana," says Rice. "That's called 'commandeering,' or forcing a state to legislate in a different way than it is currently."

In other words, the federal government is deliberately attempting to interfere with the effective implementation of a law that was approved by the people and the state, hence violating both groups' rights under the 10th Amendment.

"The problem is we have all these gray areas," says Rice. "So the city of Santa Cruz is attempting to come up with these guidelines and dispensaries. How are patients who can't grow going to get their medicine?"

Today Santa Cruz has two medical marijuana dispensaries, but the Compassionate Use Office is on hold until councilmembers are assured that the federal government will not bring legal action against them. Obtaining that guarantee is one of the reasons the city latched onto the lawsuit.

This case joins a number of others in attempting to work through the gray areas of the newly emerging realm of medical marijuana law, including a case against Felton resident Roger Mentch, who was arrested in 2003 for providing 10 to 15 patients with marijuana on the grounds that he didn't fit into the legal definition of a caregiver.

While the medical marijuana debate has been fought recently with the weapons of overwhelming police force and lawyers, Corral and others at WAMM hope Congress will eventually take up the issue and put an end to the costly and time-consuming cross-agency bickering.

"The Supreme Court now is very much like the McCarthy court of the '50s," says Corral. "What we really need here is an act of Congress."



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