Medical pot backers sue feds over Calif. crackdown; suit cites Eureka, Chico letters from U.S. attorney

November 02, 2011

Donna Tam, Redwood Times

With tensions surrounding medical marijuana ordinances perpetually high in recent months, Humboldt County medical marijuana advocates were not surprised by the Americans for Safe Access lawsuit filed recently against the federal government’s efforts to crack down on the state’s storefront pot dispensaries.

Arcata dispensary owner Mariellen Jurkovich said the lawsuit illustrates the frustration the medical marijuana community has experienced over the years. “It’s good that we have people that are fighting for the rights of patients, for state rights,” she said.

The suit claims government officials have overstepped their constitutional authority by not respecting how local officials have chosen to regulate pot stores and growers. With local governments creating new ordinances and regulations for dispensaries, Jurkovich - like many other local dispensary owners - said she put in effort and money to ensure her dispensary was up to par with city code.

But now, recent pressure from the federal government has put a strain on that legitimacy, causing cities like Arcata and Eureka to reconsider their ordinances.

The lawsuit filed in San Francisco by the advocacy group Americans for Safe Access states that recent raids of licensed dispensaries, and letters warning city officials they could be prosecuted for trying to regulate medical marijuana cultivation and sales, constitute an illegal power grab under the 10th Amendment. The amendment awards to states legislative authority not explicitly reserved for the federal government.

”ASA does not challenge the congressional authority to enact laws criminalizing the possession and/or control of marijuana, as this issue has been resolved in the government’s favor,” Americans for Safe Access chief counsel Joe Elford wrote in the complaint. “It is, rather, the government’s tactics, and the unlawful assault on state sovereignty they represent, that form the gravamen of ASA’s claim.” The suit names U.S. Attorney General Eric Holder and Melinda Haag, the U.S. attorney for Northern California, as defendants. Haag’s spokesman Jack Gillund declined to comment on the case.

Earlier this month, the four federal prosecutors in California announced a broad effort to close medical marijuana clubs they claim are located too close to places where children gather or are fronts for drug dealing. They sent letters to landlords renting space to medical marijuana dispensaries, saying they could have their property seized for aiding and abetting criminal enterprises. Many of the 38 Southern California marijuana outlets that were targeted in the letters have closed because landlords, threatened with criminal charges or seizure of their assets, were given just two weeks to evict their tenants. Property owners in the rest of the state were given six weeks to comply.

In recent months, the cities of Eureka and Arcata have revisited their medical marijuana ordinances in fear of federal repercussions. While Arcata decided to suspend the issuance of permits, Eureka is meeting to discuss a possible dispensary permit moratorium.

Kelly Dodds, executive director of the Humboldt Bay Wellness Center, said more lawsuits are expected if Eureka chooses to yield to federal pressure. Although she is not a member of ASA, she said she can empathize with the sentiment of providing safe access of medicine. The center is one of three businesses approved to apply for a permit to open a dispensary in town.

”The federal government can’t come in and overthrow our state constitution, it can’t overturn our state laws, it can get away with it if people allow it ... this is another aspect of civil rights as far as I’m concerned,” she said.

The lawsuit filed on behalf of Americans for Safe Access’ 20,000 California members does not contradict the right of federal prosecutors to go after property owners. Instead, it challenges their authority to “coerce” local government officials into abandoning procedures for licensing and regulating dispensaries and growers, Elford said.

Since the U.S. attorneys announced their crackdown, officials in Sacramento and Arcata, for example, have suspended plans to issue operating permits to dispensaries that meet specific criteria.

”By directly interfering with the legislative function of the state, they force the state to criminalize activities they do not want to criminalize,” Elford said.

Along with an injunction barring the Department of Justice from interfering with dispensaries that meet state and local regulations, the suit seeks the return of 99 marijuana plants that were seized during an Oct. 13 raid of a medical marijuana collective that operated with oversight from the Mendocino County Sheriff ‘s Office.

Local attorney and medical marijuana advocate Greg Allen said no matter the outcome, a case of this nature will be appealed and could have the potential to reach the U.S. Supreme Court. For any case having to do with the 10th Amendment, he said it is important to recognize that local officials have the latitude, and the responsibility, to follow state law.

”I think they have to follow state law or resign,” he said. “That’s what they signed up for, their duty is to state law and their duty is to the voters of California, and more important, their duty is to the local community.” To see the full complaint, visit www.safeaccessnow.org/article.php?id=6921



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