Pubdate: Thu, 21 Aug 2008
Source: San Francisco Chronicle (CA)
Page: B - 2
Copyright: 2008 Hearst Communications Inc.
Author: Bob Egelko, Chronicle Staff Writer
Referenced: Conant v. Walters
Cited: ACLU
Bookmark: (Marijuana - Medicinal)
Bookmark: (Conant v. Walters)


A federal judge breathed new life Wednesday into medical marijuana 
advocates' effort to ward off the federal crackdown on medical pot in 
California, saying enforcement of U.S. drug laws can go too far if it 
seeks to interfere with state authority.

U.S. District Judge Jeremy Fogel of San Jose denied a Bush 
administration request to dismiss a lawsuit by Santa Cruz city and 
county officials and members of a medical marijuana collective whose 
drugs were seized by federal agents in a 2002 raid.

The Santa Cruz raid was one of many actions by federal authorities 
against suppliers of marijuana in California since the state's voters 
approved a 1996 initiative allowing individuals to grow and use pot 
with their doctors' approval. Federal prosecutors have shut down 
medical marijuana dispensaries, threatened to sue the dispensaries' 
landlords, won convictions against growers for violating federal 
narcotics laws and sought to punish doctors for recommending marijuana.

The U.S. Supreme Court and other courts have upheld the federal 
actions, except for the government's attempt to strip federal 
prescription licenses from the doctors. But Fogel said the plaintiffs 
in the current case may be able to show that the federal government 
exceeded its constitutional authority by trying to force California 
to repeal its medical marijuana law.

The suit claims federal prosecutors have tried to disrupt the 
California law by enforcement that targeted critical participants in 
the state system - doctors who approved their patients' marijuana 
use, local officials who issued state-approved identification cards 
to medical marijuana users, local governments whose zoning allowed 
pot dispensaries, and marijuana suppliers who cooperated with local 

Federal authorities' goal, the plaintiffs alleged, is to make it 
impossible for the state to distinguish between medical and 
recreational use of marijuana and render the state law unenforceable, 
interfering with California's constitutional power to enact its own laws.

Government lawyers denied any such intention and said the suit was 
baseless. Neither the federal drug law nor any enforcement action has 
required the state to change its marijuana law or enforce federal 
laws, they said.

The suit, if successful, "would unlawfully inject the courts into 
considerations of how the government is enforcing federal law, 
matters which the Constitution vests in the executive branch," 
Justice Department lawyers said in court papers.

But Fogel said Wednesday that if the plaintiffs can prove all their 
claims, "they may be able to show that (federal officials) are 
deliberately seeking to frustrate the state's ability to determine 
whether an individual's use of marijuana is permissible under California law."

He cited an opinion by Judge Alex Kozinski of the Ninth U.S. Circuit 
Court of Appeals in San Francisco in the 2002 ruling on doctors who 
recommended marijuana. Although the federal government may prefer 
that California prohibit medical marijuana, Kozinski said, "it cannot 
force the state to do so."

Medical marijuana advocates and their lawyers called the ruling a 
potential breakthrough.

"For the first time, a court has recognized that a calculated plan by 
the federal government to undercut state medical marijuana laws is 
patently unconstitutional," said Graham Boyd, an American Civil 
Liberties Union lawyer. 
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MAP posted-by: Richard Lake