Legal News

U.S. judge backs medical pot activists' suit against government

By Jason Siegel

In the first decision of its kind, a federal judge has ruled that California's medical marijuana advocates may go forward with a claim that the federal government has a pattern of drug law enforcement intended to subvert the California law in violation of the U.S. Constitution.

U.S. District Judge Jeremy Fogel, in San Jose, Calif., said he will allow Santa Cruz County to go forward with its claim that federal authorities deliberately are seeking to frustrate the state's ability to determine whether an individual's use of marijuana is permitted for medical use, or illegal recreational use.

Medical marijuana advocates contend the federal government has engaged in a calculated campaign to force states to repeal medical marijuana use laws, in violation of the tenth amendment, which reserves states' powers.

The U.S. Supreme Court has said the federal government maintains the power to enforce federal marijuana laws, even in the dozen states that have made medical marijuana legal.

But the court's Raich v. Gonzales, ruling left individual state laws untouched.

Santa Cruz passed an ordinance that creates a government office responsible for providing medical marijuana directly to patients, in part to test the reach of the Raich decision.

The lawsuit, County of Santa Cruz v. Gonzales, C03-1802JF, by Santa Cruz County against the U.S. Attorney General alleges the federal government has targeted enforcement to make it impossible for California to implement and enforce its law and force the state to recriminalize medical marijuana use.

The suit alleges federal prosecutors threatened to punish California doctors who recommend marijuana, threatened officials who issued medical pot identification cards, interfered with zoning plans to allow pot dispensaries and targeted for arrest those providers who cooperate closely with municipalities.

The suit alleges the actions make it impossible for the state to distinguish between authorized use and unauthorized recreational users in the state.

The federal government responded in papers that the 9th U.S. Circuit Court of Appeals has held the plain terms of the Controlled Substances Act do not violate the tenth amendment by directing actions of the state. Based on that ruling, federal officials argued the Santa Cruz case had to be dismissed, saying the case is nothing more than a claim of selective enforcement.

Fogel disagreed and allowed the case to proceed.

-- Pamela MacLean

Full post as published by Legal Pad | LA on August 21, 2008 (boomark / email).