Thursday, November 29, 2007

Court protects California's medical marijuana law

The most encouraging news of the day to me was the decision by the California 4th District appeals court upholding a local court order for the Garden Grove police to return about a third of an ounce of marijuana to young Felix Kha, a qualified medical marijuana patient. Kha was stopped two years ago for running a red light. He consented to a search of his car, and the cops found a bag labeled "medical marijuana" on his front passenger seat. He then showed them a doctor's recommendation, but the police went ahead and confiscated his cannabis, then charged him with transportation and the traffic infraction.

After confirming that the recommendation was from a duly licensed physician the prosecutor declined to prosecute on the drug charge. Kha pleaded guilty to the traffic beef and asked the court to order the police to return his property. The court held a hearing and then did so, on the fairly obvious grounds that as a patient he was legally entitled to have it, and since no charges were pending there was no need to keep it as evidence.

The city appealed, on various grounds, largely having to do with the fact that marijuana possession and distribution is still illegal under federal law and the cops didn't want to break federal law. The appeals court told them -- quite correctly -- that their primary job was to uphold California law, not to enforce federal law.

I talked to Joe Elford, Kha's attorney (by way of Americans for Safe Access). He told me what he found gratifying was that two of the members of the unanimous three-judge panel were former district attorneys and Judge Bedsworth, who wrote the decision, had been president of the Orange County DA's Assn. Since the Calif. District Attorneys Assn, along with the state sheriffs' association and the peace officers association had all filed Amicus briefs on behalf of Garden Grove, it was nice to see the former DAs on the bench set them straight. (California's Attorney General, Bill Lockyer then, Jerry Brown now, filed an Amicus on behalf of Kha.)

And the 41-page decision is a strong one. It made clear the court was granting standing to the city only because it was an issue of such public interest and one that different courts had decided differently. Then it proceeded to blow every city contention out of the water in strong and sometimes outright dismissive language. At the end it took on the arguments in the enforcers' brief and blew them away too.

Garden Grove's city attorney didn't return my phone call today, but I'd be surprised if the city didn't appeal to the California Supreme Court. They've already wasted a certain amount of the taxpayers' money trying to nullify (and that's the right word) the medical marijuana law California's voters approved way back in 1996, so they'll probably continue. But it's difficult for me to see the high court abandoning California law the way the cops (!) will be asking it to.

Garden Grove is hardly alone in its hard-nosed (and I would argue outright illegal) attitude toward patients. Americans for Safe Access says it has had reports from 800 patients over the last two years, and in 90 percent of the encounters with law enforcement, the cops confiscate the cannabis, despite seeing valid doctor recommendations. If this decision is appealed, of course, it could be a couple of months before the decision takes effect, even if the high court declines to hear the case, which would be the best outcome. But it could make life easier for patients right away if even some local police forces start doing the right thing even before the order from the courts is fully decisive. The California Highway Patrol used to be the worst offendor, confiscating patient cannabis every time it found it, but after ASA presented solid legal arguments and threatened to sue, it changed its policy and now never confiscates. Both the attorney general and the governor need to affirm state law now and issue guidelines or a bulletin congruent with the court's decision.

This post is already a bit long, so I'll discuss the legal issues in another post. For now, a reminder that all the scientific, legal, political and historical background you need to know more than most police officers and officials, lawyers, judges and doctors do is in my book, "Waiting to Inhale: The Politics of Medical Marijuana."

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