SELF-HELP LAW: Conflict between state and federal pot laws

November 27, 2007

Marc Komer, Columnist, Willits News (CA)

Under our federalist system of government, the states, rather than the federal government, are entrusted to exercise a general police power for the benefit of their citizens. Due to this constitutional division of authority between the federal government and the states, the State of California may elect to decriminalize conduct, such as medical marijuana activity, which remains illegal under federal law.

Even if law enforcement officers take a personal position on any conflict between state and federal law, they are bound by California's Constitution to uphold only state law.

The California Supreme Court stated in People v. Mower (2002) that the State of California is responsible for enforcement of its own marijuana laws, and not those of the federal government. Under California medical marijuana law, patients and caregivers are exempt from prosecution by the state regardless of federal law.

In People v. Tilehkooh (2003), the court found California courts "long ago recognized that state courts do not enforce the federal criminal statutes." The same court also stated "the federal criminal law is cognizable as such only in the federal courts." In People v. Kelly (1869), it was determined that "State tribunals have no power to  punish crimes against the laws of the United States as such. The same act may, in some instances, be an offense against the laws of both, and it is only an offense against the State laws that it can be punished by the State, in any event."

More recently, California Attorney General Bill Lockyer provided some clarification on the role and responsibility of the state in upholding medical marijuana law. The state has assisted a patient in a case where a superior court ruled against the patient, claiming "[medical marijuana cultivation is] still illegal under federal law."

On appeal, Lockyer dismissed the entire federal law argument, stating "the continuing prohibition of marijuana possession under federal law" does not come into play. Instead, Lockyer "acknowledged both generally and in the specific context of interpreting the Compassionate Use Act it is not the province of state courts to enforce federal laws."

In future columns, I will discuss California marijuana laws in more detail.

ABOUT THE AUTHOR: Marc Komer is a legal document assistant and can be reached at 459-2775 or

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