Thursday, November 29, 2007

Legal issues in medical marijuana return-of-property case

Here are some of the legal issues dealt with in Garden Grove v. Superior Court of Orange County, the medical marijuana return-of-property case that was decided in such a resoundingly favorable way yesterday in California.

The basic conflict, of course, is between federal law, which dictates essentially total prohibition of marijuana, without -- as the Oakland Cannabis Cooperative Supreme Court decision affirmed (wrongly in my view) -- any provision for medical necessity. The Raich case decided (again incorrectly) that the Commerce Clause allowing federal regulation of interstate commerce, allows for such total prohibition even for cannabis grown in California that has not crossed state lines or been exchanged for money because it might (though the decision offered no real evidence that it did) affect the illicit interstate commerce in cannabis.

Garden Grove argued that this total federal prohibition prevented police officers (sworn to uphold the law) from returning marijuana to a patient even though there was no drug charge pending against him. They didn't quite argue (though they came up to the edge of it) that federal law invalidated state law. But they even maintained that officers might be subject to federal prosecution if they gave the patient's property back to him. They also tried to argue that California law, even with the Compassionate Use Act in place, didn't require them to return the marijuana.

The appeals court first reluctantly gave the city standing to pursue the case, but only because it was a matter of public interest about which various courts had ruled differently. Then it poiinted out that under the law, in keeping and disposing of seized property, the police were strictly an agent of the courts, without independent decision-making authority. They clarified that California law enforcement officers, while they may cooperate with the feds when state and federal law coincided, were sworn to enforce California law as their first priority. The argument that returning the marijuana could be a federal crime was defeated by noting a federal law gives officers (and doctors in some cases) immunity from prosecution when handling controlled substances in the course of their duties, that it became trafficking only when there was an intention to aid and abet the illegal drug trade, which was obviously not the case.

They then went through the Oakland and Raich decisions, pointing out that they dealt only with federal law, and that neither case invalidated California law, but respected the federalist principle that some states might have laws that differ from federal law and that this was good for local control and the possibility of experimentation and innovation. (I attended the Oakland oral arguments, during which Justice Ginsburg asked the government attorney why she wasn't asserting the federal supremacy clause, to which she replied that this was a case where state and federal law differed, and the case was about interpretation of federal law.)

Key quote: "Kha ... is a qualified patient whose marijuana possession was legally sanctioned under state law. That is why he was not subjected to a criminal trial, and that is why the state cannot destroy his marijuana. It is also why the police cannot continue continue to retain his marijuana. Because Kha is legally entitled to possess it, due process and fundamental fairness dictate that it be returned to him." Fnal graph: "Mindful as we are of the general supremacy of federal law, we are unable to discern any justification for the City or its police department to disregard the trial court's order to return Kha's marijuana. The order is fully consistent with state law respecting possession of medical marijuana, and for all the reasons discussed, we do not believe the federal drug laws supersede or preempt Kha's right to the return of his property."

2 comments:

John said...

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