Long Beach Pot Ordinance Ruled Illegal: Cannabis Activists Winning?
October 06, 2011
Nick Schou, OC WeeklyLong Beach city officials are scratching their heads about how to respond to an appeal court decision that appears to overturn the city's medical marijuana ordinance. According to an article by Greggory Moore posted yesterday evening on Long Beach Post, the city attorney and city prosecutor are analyzing the decision in preparation for a meeting with city council members on how to proceed. "It will obviously have a significant effect on enforcement of [the ordinance]," City Prosecutor Doug Haubert told Moore, referring to the ruling. "But until I've done that analysis, I don't have any comment."
City attorney Robert Shannon was a bit more forthcoming, and his comments appear to confirm that Long Beach's effort to regulate marijuana may soon be a thing of the past. "There are a number of options," he told the Post. "We can petition the [California] Supreme Court, we can let the decision stand as it is, we can go back to the superior court and salvage whatever could be left of the ordinance, [which] would be consistent with the decision to enact a complete ban on medical marijuana...the bottom line is we'll be taking it to the city council for their determination as to where to proceed from here."
You can read the rest of Moore's article here.
ORIGINAL POST, OCT. 5, 12 P.M.: On Sept. 24, 2010, an unusual lawsuit found its way to the Los Angeles Superior Court: a pair of pot smokers in Long Beach sued the city to overturn its own medical marijuana ordinance, a law that ostensibly protected the rights of city residents with valid doctors' recommendations to smoke cannabis. The two plaintiffs, Ryan Pack and Anthony Gayle, one of whom had been in a car crash and the other who suffered from renal failure, certainly didn't see it that way. Because Long Beach claimed that the collectives where they happened to obtain their cannabis were violating the new ordinance, the city had threatened to raid the establishments if they didn't shut down by Aug. 31 of that year.
Pack and Gayle's lawsuit made a seemingly counter-intuitive argument, at least coming from medical marijuana advocates: because marijuana is still illegal under federal law, Long Beach's pot ordinance was illegal and the city's threat to shut down the clubs in question was therefore unenforceable. Although a judge denied the lawsuit, the plaintiffs appealed and won. Yay!
The only catch: their successful appeal apparently now provides a precedent for 420-friendly ordinances in cities throughout California to be overturned.
Mark Pappas, Pack and Gayle's attorney, sent out a celebratory email yesterday claiming the ruling was a huge victory, noting there are roughly 100 criminal cases pending against people the city has alleged are in violation of the marijuana ordinance. "Those charges were all for failing to have a City permit," Pappas argued. Meanwhile, the city has collected $15,000 application fees from several dozen clubs who sought permits to operate in the city. "Since the permit provision and permit fee provisions are completely invalid, the City will have to have to return close to a million dollars paid to it," he added. "Finally, the patients who have suffered illegal raids, arrests, and attacks are now no longer subject to the outrageous provisions of a clearly invalid city law."
Pappas' enthusiasm isn't shared by the California chapter of Americans for Safe Access, (ASA), which along with the American Civil Liberties Union, (ACLU), filed an amicus brief opposing his lawsuit.
"The Pack ruling appears to call into question the entire legal basis of numerous other local dispensary regulation schemes that have been successfully adopted by other California cities (as well as the state of Colorado)," wrote Dale Gierenger of CANORML, the California chapter of the National Organization for the Reform of Marijuana Laws, in an email alert this morning. "Taken seriously, it could undermine the whole basis for legal control and taxation of medical cannabis in California."
While it's obvious this is a legal "victory" most pot activists seem to wish had never happened, it's still too early to know exactly how this ruling will affect ongoing criminal prosecutions, such as the high-profile one against Joe Grumbine and Joe Byron in Long Beach Superior Court, who won't be able to use California's legalization of medical marijuana in their defense and who face several years in state prison if convicted, much less if it will effectively overturn Long Beach or other cities' marijuana ordinances. Notes Gierenger. "Further litigation in higher courts appears inevitable."