Pubdate: Fri, 8 Oct 2010
Source: Sacramento Bee (CA)
Page: 1A, Front Page
Copyright: 2010 The Sacramento Bee
Cited: Proposition 19
Bookmark: (Proposition 19)


Backers of California's Proposition 19 call it a landmark challenge to
America's war on drugs. But passage of the initiative to legalize pot
for recreational use may open up a legal war between California and
the federal government.

Some fear a renewed surge of federal raids, similar to actions that
shut down medical pot shops, targeted suppliers and doctors after
California voters passed Proposition 215, its medical marijuana law,
in 1996.

Even some fervent proponents of the initiative to allow anyone 21 and
over to smoke pot say federal authorities would quickly sue California
to overturn the new law.

"I have no doubt that the feds will file suit if Proposition 19
passes," said Dale Gieringer, California director for the
pro-legalization National Organization for Reform of Marijuana Laws.

In an Aug. 24 letter, nine former administrators for the Drug
Enforcement Administration urged Attorney General Eric Holder to bring
suit against California -- just as the Obama administration sued
Arizona when that state passed a controversial law aimed at illegal

"The California proposition is not a close call," wrote the ex-DEA
administrators, including Robert Bonner, the former supervising U.S.
attorney in Los Angeles. "It will be a clear conflict with established
federal law."

Reached Wednesday in Mexico City, where he was attending a drug policy
conference, Bonner said the California measure conflicts with United
Nations treaties signed to prevent the spread of psychoactive drugs.

"The United States has treaties that would be violated if Proposition
19 were enacted. It would send a terrible signal to countries of the
world," he said.

The U.S. Justice Department isn't saying how it would respond if
Proposition 19 passes.

"The Department of Justice will continue to focus its enforcement
resources on significant traffickers of illegal drugs, including
marijuana," said Justice Department spokeswoman Tracy Schmaler in
Washington, D.C. "It is premature to speculate what steps we would
take in the event that California passes its ballot measure."

Backlash Could Hurt Medical Pot Users

Last year, Attorney General Eric Holder declared the federal
government would no longer target medical marijuana operations in
states permitting medical use.

California and 13 other states now permit medical marijuana. And
federal raids on medical pot establishments -- particularly those
catering to the seriously ill -- stirred political sympathies in favor
of medical marijuana.

Now legal observers, such as Santa Clara University law professor
Gerald Uelmen, say Proposition 19 could upset the accord that federal
agents and California established with medical use.

"I think it will open up a new order of conflict between the state and
the feds," Uelmen said. "The feds resisted (Proposition 215) from the
get-go. But I think we finally wore them down.

"Now, if we open the door to lawful cultivation and distribution for
recreational use, I think there will be a very strong reaction."

In 2001, Uelmen unsuccessfully argued before the U.S. Supreme Court on
behalf of the Oakland Cannabis Buyers Cooperative serving medical
marijuana patients.

The court, in a decision written by Justice Clarence Thomas, declared
that marijuana was still illegal, and a "medical exception" defense
for the Oakland pot club was invalid under federal law.

In a 2005 case, the high court also ruled against California
petitioner Angel Raich, whose six-plant medical marijuana garden was
raided by DEA agents after Butte County authorities declined to file
state drug charges against him.

In the second ruling, Justice John Paul Stevens wrote that although
"California has been a pioneer in the regulation of marijuana,"
enforcement of Federal Controlled Substance Act prohibitions against
pot remain "a valid exercise of federal power."

President Barack Obama is opposed to legalizing marijuana. His 2010
National Drug Control Strategy statement declares: "This
administration firmly opposes the legalization of marijuana or any
other illicit drug."

Still, retired Orange Superior Court Judge James Gray, a backer of
Proposition 19, said he believes public acceptance of marijuana will
diminish the federal response.

"I cannot conceive that the Obama administration would thumb its nose
at the voters of the state of California," Gray said.

Passage Could Put State, Federal Law in Conflict

Proposition 19 would allow Californians over 21 to possess marijuana
for recreational use and permit them to grow pot in small residential
spaces. It would also allow local governments to tax retail sales and

Zenia Gilg, a San Francisco attorney who handles medical marijuana
cases, said federal authorities are unlikely to target average
Californians if Proposition 19 passes. But she said they may well raid
large-scale marijuana producers.

In Oakland, producers readying industrial growing rooms for medical
pot are eying expansion into legal recreational weed. The city has
already approved a conditional tax if Proposition 19 passes.

Gilg says that may be a dilemma for federal agents.

"If they're going to prosecute the guy at the till (of a marijuana
business) and not the city or county, they run into a political
quagmire," Gilg said. "Because they're not going to prosecute the city
or county."

In California's medical marijuana market, dispensaries account for
more than $100 million in sales taxes, according to state estimates.

But Uelmen said the mere act of paying taxes on recreational marijuana
sales could constitute acknowledgment of a federal crime. "To pay the
taxes will require us to admit that, in effect, we're violating
federal law," he said.

While the law may side with the federal government, Los Angeles
marijuana lawyer Bruce Margolin said politics does not. He points to
decreased acceptance of medical pot raids.

In 2002, a DEA raid on a Santa Cruz medical pot commune for sick and
dying patients produced such a backlash that the city and county sued
the federal government. A court settlement banned future DEA raids as
long as the operation was legal under state law.

In a high-profile medical marijuana case, California cannabis growing
guru Ed Rosenthal was sentenced to a single day in jail in 2007 --
despite a federal conviction for illegal cultivation.

A U.S. District Court in San Francisco also stopped the DEA from
punishing doctors or threatening to revoke their licenses for
recommending marijuana to patients.

Still, Donald Heller, a former Sacramento assistant U.S. attorney,
said passage of Proposition 19 would give federal authorities no
choice but to act.

"I think this pushes it beyond the edge," he said.
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MAP posted-by: Richard Lake