Medical marijuana advocates take their battle to the courts

November 09, 2011

Peter Hecht, Sacramento Bee

They are the public face of a litigious battle to redefine federal authority on medical marijuana.

With emotion and printed placards – "Marijuana is medicine, Let states regulate!" – about 200 people protested at the U.S. courthouse in Sacramento Wednesday against a federal crackdown on California dispensaries and property owners leasing to medical cannabis businesses.

But the real action may result from five lawsuits filed in recent days against U.S. government officials, including Attorney General Eric Holder, California's four U.S. attorneys and President Barack Obama's director of national drug control policy.

The suits assert that federal prosecutors are violating equal protection laws and states' rights, and constitutional protections for in-state commerce. The ultimate goal may be to force the government to negotiate a settlement that spells out what it will tolerate in California and other states permitting medical marijuana use.

"We would like to get a rational dialogue going with the federal government about how to handle medical cannabis in California," said Matt Kumin, a lead attorney in lawsuits filed in each of the state's federal judicial districts. The suits seek injunctions to stop the seizure of properties of landlords leasing to medical marijuana operations.

A fifth suit, by the advocacy group Americans for Safe Access, seeks to bar federal actions "to dismantle the laws of the state of California."

Don Heller, a former Sacramento federal prosecutor, said the suits could force a definitive answer by the U.S. Supreme Court on the issue of federal "supremacy and states rights and who shall prevail with respect to marijuana."

"It has been nibbled at and now it really should be decided," he said.

In an announcement last month, U.S. prosecutors broadly asserted that dispensaries in California are profiteering in violation of both federal and state law. They've brought charges that some bad actors have trafficked medical marijuana out of state or pocketed millions of dollars from cultivation operations for marijuana stores.

U.S. Attorney Benjamin Wagner in Sacramento said in a statement Wednesday that California prosecutors "will continue to enforce federal narcotics laws, unless and until ordered to do otherwise."

In contrast, marijuana advocates are suing on behalf of people such as Ryan Landers of Sacramento, who uses medical marijuana for symptoms of AIDS, or Briana Bilbray, a cancer patient who uses cannabis and the daughter of San Diego Republican Rep. Brian Bilbray.

The suits also challenge threats to seize properties of landlords who rent to dispensaries, including the El Camino Wellness Center, one of Sacramento's leading medical marijuana outlets, or the Marin Alliance for Medical Marijuana, California's longest operating medicinal cannabis provider.

Kumin said plaintiffs want to know why the federal government has taken little action in Colorado, which permits a heavily regulated, for-profit medical marijuana industry, while launching aggressive actions in California.

The government's stance is that all marijuana – medical or otherwise – is illegal under federal law. But Kumin said the Colorado model suggests California may be able to negotiate standards for medical marijuana distribution that would ward off federal intervention.

Santa Clara Clara University law professor Gerald Uelmen said a U.S. Supreme Court battle is unlikely to produce positive results for the medical marijuana movement.

Uelmen unsuccessfully argued a 2001 case for the Oakland Cannabis Buyers Club, in which the Supreme Court ruled no "medical necessity" exempts marijuana from federal law. In 2004, the court rejected California medical user Angel Raich's claim that federal marijuana laws intruded on constitutionally protected state commerce.

But Uelman said legal actions may force the government to negotiate with the advocates.

Uelmen represented the Santa Cruz Wo/Men's Alliance for Medical Marijuana (WAMM) in an eight-year battle against federal authorities after a 2002 raid on the pot garden of a colony of severely or terminally ill patients. It resulted in a 2004 ruling permitting the group to grow marijuana and a 2010 agreement to drop the suit on the condition the government would no longer raid the garden.

Uelmen said authorities may be less accommodating for dispensaries the government views "as a ploy to run commercial operations to sell marijuana."

In a parallel effort to the lawsuits, advocates are drafting a ballot initiative for statewide regulation of California's medical marijuana industry, hoping it may diminish incentives for federal intervention.

California Board of Equalization member Betty Yee joined courthouse protesters Wednesday, decrying federal actions against dispensaries that she described as "responsible corporate citizens who pay state sales taxes."

Kumin said he hopes the lawsuits can "enshrine" support for medical marijuana in California into federal law or policy. "We believe there are judges out there who are brave and ready to look at the utter contradictions," he said.



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