While the Obama administration’s sudden escalation of war on marijuana has caused nothing but hardship on patients and thousands of lost jobs, it may ultimately become the catalyst for the final legal dismissal of federal cannabis prohibition. Since 2005 and Raich v Gonzales, when the Supreme Court ruled that federal authorities could indeed enforce drug laws in the states, the legal front of the marijuana battle had shifted to smaller lawsuits over local ordinances and state laws. Now that the crackdown on California medical marijuana (as well as the multi-agency assault on the civil rights of patients and dispensaries) has created thousands of potential plaintiffs and unsettled the national marijuana industry, the game has changed. Already, lawsuits backed by NORML and Americans for Safe Access have been launched against the federal government to challenge the constitutionality of their actions. As these cases make their way through the legal system, the marijuana movement must give them their full backing to ensure that the Supreme Court is forced to deal with the government’s outrageous assertions of authority over state marijuana laws.
The Oakland-based Americans for Safe Access, a long-standing national advocacy group, has filed a lawsuit against the feds, embodied in this case by Attorney General Eric Holder and Northern California US Attorney Melinda Haag, for violating the Tenth Amendment by attempting to coerce state authorities to work against medical marijuana. It is good to see this argument being used, as it will challenge the courts to define boundaries of federal power that will have far-reaching ramifications for a range of issues -making it hard to segregate it as a “marijuana case.”
The ASA lawsuit does not question the government’s power to enact federal prohibition, rather it challenges its tactics of forceful interference with state legislative functions which, according to ASA chief counsel Joe Elford, “force the state to criminalize activities they do not want to criminalize.” The issue here is that federal authorities are “not just enforcing marijuana laws, they are doing something extremely unusual in an effort to quash the medical marijuana programs in the various states,” and this is not something backed by legal precedent. “They’re not allowed to commandeer the lawmaking functions of the state,” said Elford.
The lawsuit argues that “the federal government has instituted a policy to dismantle the medical marijuana laws of the state of California and to coerce its municipalities to pass bans on medical marijuana dispensaries.” To support this, it cites instances where US attorneys worked to scare cities like Chico, Arcata and Eureka into backing away from ordinances friendly to medical marijuana. Additionally, the filing accuses authorities of illegally raiding a Mendocino cooperative (which had been operating under oversight from the local sheriff’s department) and seeks an injection barring the Department of Justice from interfering with dispensaries that operate in full compliance with local laws.
A few days later, NORML attorneys also filed lawsuits in California’s four judicial districts which go after the government for entrapment as well violation of the Ninth, Tenth and 14th Amendments. The entrapment charge, an unexpected but key element of the effort, brings up the fairly recent County of Santa Cruz v Holder case in which the federal government pledged in court that it would not go after marijuana patients in complacence with state law. The famed 2009 Ogden Memo promising not to go after legitimate medical marijuana is not mentioned in the lawsuit but it is part of the same bait and switch tactic. Not only is the government blatantly “playing ‘fast and loose’ with federal courts” by ignoring this promise, the lawsuit states, it is also violating principles of Equitable Estoppel. In other words, it is creating entrapment by going after parties who “reasonably relied on that DOJ statement to operate or to continue to operate medical cannabis facilities or, in the case of landlords, to lease their properties or to continue to lease their properties to patient cooperatives which were in compliance with California state law.”
On the constitutional side of things, the lawsuit claims that federal actions are violating patients’ “right to consult with their doctors about their bodies and health” granted by the Ninth Amendment as well as California’s Tenth Amendment “power to protect the health of its citizens.” Another, more novel argument, states that the federal government is violating the 14th Amendment Due Process rights of California Patients by unjustly discriminating against them. The lawsuit claims that “in no instance has the federal government shown a rational basis for its recent effort to end the supply of medical cannabis to qualified patients in California.” Given that the government provides medical marijuana to four federal patients, that it allows Colorado’s marijuana industry to go on relatively unmolested and that it actively restricts any research into the medicinal value of cannabis, its actions against California patients are discriminatory and thus illegal. The action also seeks to temporarily halt dispensary shut downs and asks the court to re-examine the government’s powers of drug prohibition.
One can only guess as to why the Obama administration chose to to stir the hornet’s nest and mount an all out attack on California’s marijuana community, but the deed is done and the president will soon see why this was a big mistake. By opening the doors to a myriad court battles, the feds may well have signed the death warrant for their powers of intrusion into state affairs; not only in the case of medical marijuana, but on a slew of Commerce Clause related issues like gun laws and healthcare. One thing is certain, Californians will fight on and there really is no putting the genie back in the bottle now; medical marijuana is not going to go away and the sooner the courts force the government to realize this, the better.
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