Pubdate: Fri, 30 Nov 2007
Source: Orange County Register, The (CA)
Copyright: 2007 The Orange County Register
Contact:  http://www.ocregister.com/
Details: http://www.mapinc.org/media/321
Referenced: http://www.courtinfo.ca.gov/opinions/documents/G036250.PDF
Bookmark: http://www.mapinc.org/mmj.htm (Marijuana - Medicinal)

WRONGLY SEIZED POT MUST BE RETURNED

Appellate Court Tells Garden Grove It Can't Rely on Federal Ban on 
Medical Marijuana

The decision by a unanimous three-judge panel of the 4th District 
Court of Appeal to uphold a court order directing Garden Grove police 
to return marijuana seized from a properly certified patient is a 
welcome validation of the law approved by voters 11 years ago. Since 
it clarifies the duty of state and local law enforcement agencies - 
to uphold state law, not to ignore it and seek to enforce federal law 
- - it should end the noxious and widespread practice of simply seizing 
medical marijuana from patients who are legally entitled to possess it.

California voters in 1996 approved the Compassionate Use Act, which 
carved out an exception to the laws against possessing, using or 
cultivating cannabis, or marijuana, for patients with a 
recommendation from a licensed physician. A subsequent state law 
defined implementation protocols and set up a voluntary state ID card 
system for patients.

However, federal law still prohibits (foolishly in our view) any use 
or possession of cannabis. That creates a potential source of confusion.

However, the California constitution states that state officials are 
bound to uphold and enforce California law, even if there is an 
appearance of conflict with federal law, unless and until a federal 
court has ruled that the state law is invalid due to the doctrine of 
federal supremacy. That has not happened.

During Supreme Court oral arguments in the Oakland Cannabis 
Cooperative case, Justice Ruth Bader Ginsburg asked the government 
attorney why she was not invoking federal supremacy. She responded 
that this was one of many instances where state and federal laws 
differed; the issue in this case was whether federal law could permit 
a medical exception.

Now that the appellate court has clarified the issue, state Attorney 
General Jerry Brown and Gov. Schwarzenegger should issue guidelines 
to all law enforcement personnel. They could be modeled on those of 
the California Highway Patrol, which decided two years ago to stop 
seizing marijuana from patients. 
- ---
MAP posted-by: Richard Lake