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SACRAMENTO – In light of a recent statement by California Attorney General Bill Lockyer, medical marijuana advocates are calling on him to issue a formal legal opinion requested by numerous public officials over the years. Americans for Safe Access, a medical marijuana advocacy group, is asking Lockyer to answer the latest overdue request “to clarify the scope of permissible conduct of California officials,” made by Assemblymember Mervyn Dymally (D-CA) in June 2004 in regards to medical marijuana.
Some legal clarification was provided on April 6, 2005, when Lockyer stated that, “both generally and in the specific context of interpreting the Compassionate Use Act -- it is not the province of state courts to enforce federal laws.” Lockyer made this statement in a brief to an appeal on a “return of property” case, where a patient had his medical marijuana illegally seized. The lower court's ruling stated that the patient's conduct was 'illegal under federal law.' (http://safeaccessnow.org/downloads/Maravilla%20response.pdf - See page 8)
A number of elected officials, law enforcement, and district attorneys have expressed a need for clarification about their responsibilities in the case of state/federal conflict in medical marijuana law. As reported in the April 25, 2005 Ventura County Star, Chief Deputy District Attorney Jeff Bennett said, “The law is clear for what is permitted for people who need this material at the county level. I think the confusion is at the state level, where they need to clarify [whether] dispensing and possessing, and using marijuana is still a violation of federal law.” Lake Forest Councilman Richard Dixon said last Tuesday, “For me, it's black and white: Federal law trumps state law.”
Medical marijuana advocates say the councilman is mistaken. “Lockyer must state by light of day that it is the sworn constitutional duty of local and state officials to uphold and enforce state and not federal law wherein the two conflict,” said Steph Sherer, director of the medical marijuana rights' group Americans for Safe Access.
The Attorney General filed an amicus brief in Raich v. Ashcroft, dated April 29, 2003, where he states that the federal Controlled Substances Act interferes with a state's constitutional right to care for the safety and welfare of its people. Until this legal footnote, however, he had not clarified that state courts, and therefore state law enforcement, are not to enforce federal laws. (See <http://raich-v-ashcroft.com/lockyeralamoakamici.pdf>)
“The failure to provide clarification by the top law enforcement agent in the state, the Attorney General, allows for the perpetuation of a 'culture of resistance' by state officials to enforcing California’s eight year old medical marijuana law,” said Kris Hermes, legal director of Americans for Safe Access. 'So-called confusion around the state/federal conflict has resulted in hundreds of unlawful patient arrests and medicine seizures around California.”
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