Future hazy for medical marijuana

December 28, 2011

Marcel Honore, The Desert Sun

Just over a year ago, voters were on the verge of making California the first state to legalize marijuana for recreational use, but public opinion turned, and the idea swiftly went up in smoke.

That voter rejection left courts and local municipalities to grapple, yet again, with medical marijuana laws that are often vague, confusing, contradictory and vary from city to city.

In 2012, don't expect any new laws or decisions that will clear the murky legal landscape for the hundreds of thousands of Californians who use medical pot — or for opponents of legalization.

“At the moment, it's an anarchic situation and it will remain so for the rest of the year,” said Dale Gieringer, director of the National Organization for the Reform of Marijuana Laws' California chapter.

However, the new year could see key court cases develop, as well as ballot initiatives, that could clarify the ability of cities and counties to license and regulate marijuana dispensaries.

Whether federal authorities will continue the crackdown launched in the fall of 2011 on California dispensaries is anyone's guess.

Police groups against full-fledged legalization and medical pot advocates alike are hoping the California Supreme Court in 2012 will weigh whether state or federal law reigns supreme when it comes to the distribution and possession of medical marijuana.

Such a review by the state's highest court would follow a state appellate court ruling in October that determined that federal law trumped the state.

That decision, in Pack v. City of Long Beach, struck down Long Beach's authorization of medical marijuana dispensaries.

Americans for Safe Access, a medical marijuana advocacy group, filed a brief last week asking that the supreme court court review the ruling.

“After 15 years, we're finally starting to see some clarity through the court system,” said Covina police Chief Kim Raney, vice president of the California Police Chiefs Association, which opposed the 2010 initiative to legalize pot.

“We're finally starting to see courts deal with how cities are regulating” medical pot, Raney said.

But longtime drug policy-reform advocate Bill Zimmerman said he doubts the California court would take on the federal- versus-state conundrum.

“I really don't see the rationale by which they would accept such a case,” said Zimmerman, who managed the Proposition 215 campaign to legalize medical pot in 1996.

“Once the feds close down a dispensary, it's a matter of federal law and the California courts really don't have the jurisdiction to intervene,” he said, arguing it was a case for the U.S. Supreme Court instead.

Also up in the air is whether a ballot initiative that aims to add teeth to the state's pot laws would come before voters in 2012.

Even that initiative's backers question whether they'll succeed.

On Dec. 15, a coalition of pro-medical pot and union groups filed a ballot initiative that proposes a new, statewide system for regulating and taxing medical marijuana.

But getting the money and the half-million signatures to put the Medical Marijuana Regulation, Control and Taxation Act on the November 2012 ballot could be a challenge, said Gieringer, whose NORML supports the initiative.

The coalition was late to put the initiative together, primarily because it was a reaction to a federal crackdown of dispensaries and their property owners launched in October, he said.

“It's going to be tough to get the signatures,” Gieringer said. “We'll see whether that makes the ballot.”

Plus, the proposed initiative is one of several pro-pot measures already filed with the attorney general that pursue a range of reforms that would basically compete with one another.

Because there's no unified approach, no one is throwing significant cash behind any one initiative, Zimmerman said. “And that's why it now looks to me like nothing will qualify for the ballot,” he said.

Whether any initiative has a chance of making the November ballot should become clearer around May, said John Matsusaka, a law and business professor at the University of Southern California who heads the school's Initiative & Reform Institute.

In Palm Springs, the only city in Riverside County to allow dispensaries, the police department doesn't expect any change in state or federal laws any time soon.

The department continues to follow the state's 1996 Compassionate Use Act, which authorizes the dispensing of marijuana to people with a doctor's prescription, Palm Springs police Sgt. Mike Kovaleff said.

Locally, there have been no raids similar to those in Northern California, where federal authorities raided a Mendocino County dispensary directly permitted by the local sheriff.

That action came after U.S. Attorney's Offices in October announced they would prosecute dispensary owners as well as any property owners who shelter them. Since then, some 200 dispensaries have shut down across the state, marijuana advocates say.

The federal action prompted several lawsuits, including one filed by ASA, that are pending.

The United States Attorney's Office for the Central District of California declined to comment on what to expect from federal authorities next year.

Marijuana seizures at the California-Mexico border were up 47 percent in 2011. Raney, the Covina chief, said that could be traced, in part, to demand fueled by the state's myriad dispensaries.

California's Proposition 215 was supposed to allow patients to collectively grow small amounts of pot, “but we've all seen what it's turned into,” Raney said.

“California can't step out any further,” he added. “It has to be a national discussion. It can't just be a state discussion.”

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