Court of Appeals Orders Police to Return Medical Marijuana

December 03, 2007 | Joe Elford
For years there has been harassment against medical marijuana patients through the confiscation of their medicine, and, until now, there had been no clear statement on this by the appellate courts. On Wednesday, this changed. In City of Garden Grove v. Superior Court, a unanimous panel of three judges on California's Fourth Appellate District issued a 41-page published opinion, which made clear that all superior court judges across the state must return confiscated marijuana to qualified marijuana patients who demonstrate that they are entitled to possess it under California law. The opinion is written by the Honorable William Bedsworth, whom many consider the "Literary Jurist." It has many quotable passages. The opinion starts out with a noticeable description of the issue presented -- "We confront here the facially anomalous request that we approve state confiscation of a substance which is legal in the circumstances under which it was possessed." I take this to mean that the court is stating that it will not condone police seizing marijuana that is possessed legally under California law. In other words, the police should not have taken Felix Kha's marijuana in the first place. The court, then, treated seized medical marijuana just like other legally possessed property taken by the police and found that "[b]ecause Kha is legally entitled to possess it, due process and fundamental fairness dictate that it be returned to him." There would not be an exception to these constitutional principles for medical marijuana patients. Courts must return medical marijuana to qualified patients. But what about federal law, you wonder? Well, federal law expressly contains an exception to its marijuana laws for law enforcement officers performing their functions. 21 U.S.C. Section 885(d) provides that "no civil or criminal liability shall be imposed [under the federal Controlled Substances Act] upon any . . . duly authorized officer of any State . . . who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances." Thus, as did a unanimous court of appeals in Oregon, the Fourth Appellate District held that the courts and police are immune from federal drug laws for returning medical marijuana. Law enforcement's reliance on federal law in refusing to do this is misplaced. The court further explained:
By complying with the trial court's order, the Garden Grove police will actually be facilitating a primary principle of federalism, which is to allow the states to innovate in areas bearing on the health and well-being of their citizens. Indeed, "[o]ure federalist system, properly understood, allows California and a growing number of States [that have authorized the use of medical marijuana] to decide from themselves how to safeguard the health and welfare of their citizens." [citation] The [Compassionate Use Act] and the [Medical Marijuana Program Act] are a clear manifestation of that decision-making process.
The feds may do what the feds will do in enforcing their own laws, but the people of California are entitled to decide to tread a different path, which requires the return of medical marijuana wrongfully seized by the police. The City of Garden Grove was joined in its resistance to court-ordered return of medical marijuana by several amici (friends of the court), which included the California Peace Officer' Association and the California District Attorneys' Association. (The Attorney General, on the hand, filed a brief supporting our side.) The court addressed several of their claims:
Amici for the City also claim that ordering the return of Kha's marijuana is ill advised as a matter of public policy because local police are held to a high moral standard, they often cooperate with federal drug enforcement efforts, and they are generally charged with enforcing and administering “the law of the land,” which includes federal law. We appreciate these considerations and understand police officers at all levels of government have an interest in the interdiction of illegal drugs. But it must be remembered it is not the job of the local police to enforce the federal drug laws as such. For reasons we have explained, state courts can only reach conduct subject to federal law if such conduct also transcends state law, which in this case it does not. To the contrary, Kha's conduct is actually sanctioned and made “noncriminal” under the CUA.
The court emphasized to the police that medical marijuana patients are not criminals:
Amici argue the police should not have to return Kha's marijuana to him, even though he is qualified to use the drug for medical reasons under California law. Characterizing Kha as a “criminal defendant,” amici claim the CUA only provides him with a “defense” to certain offenses and does not make his possession of medical marijuana “lawful.” But Kha is clearly not a criminal defendant with respect to the subject marijuana. Since the prosecution dismissed the drug charge he was facing, he is nothing more than an aggrieved citizen who is seeking the return of his property. The terms “criminal” and “defendant” do not aptly apply to him.
For the first time in a published opinion, a California court clarified to the local police that it is state law, not federal law, they should be enforcing. It was a pleasure to read this thoughtful, well-reasoned decision which strongly vindicates the right of medical marijuana patients everywhere. It will be cited often. For the briefs filed in the case see here.
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