Pubdate: Tue, 07 Aug 2012
Source: San Diego Union Tribune (CA)
Copyright: 2012 Union-Tribune Publishing Co.
Author: Greg Moran


SAN DIEGO -- It's no hoax: U.S. Attorney Laura Duffy is being accused
by the American Civil Liberties Union of trying to meddle in local
politics by saying Del Mar city workers could face prosecution if
voters there approve a November ballot measure allowing medical
marijuana dispensaries.

David Loy, legal director for the ACLU of San Diego & Imperial
counties, wrote in an Aug. 2 letter to Duffy that threatening
prosecution for city employees amounts to "unjustified interference in
local legislative matters."

Loy said Duffy's assertion also is legally wrong -- and that court
cases have said public employees are immune from prosecution when
doing administrative tasks required under medical marijuana laws. He
called on Duffy to retract the statement.

But the U.S. attorney for San Diego said she stands by the letter,
which she sent in response to a query from Del Mar city lawyers.

In the July 17 letter, Duffy reiterated that under federal law
marijuana is an illegal drug and individuals who grow, possess or
distribute it are breaking the law.

"I respectfully disagree with the ACLU's analysis of federal and state
law in this context, and would note that the guidance I provided to
the Del Mar City Attorney's Office is guidance that has consistently
been taken by numerous United States Attorney's Offices around the
country as well as the Department of Justice," she said in a statement
this week.

The debate is the latest example of the clash between state and
federal law over medical marijuana. State law allows medical marijuana
use, but it remains illegal under federal law.

Duffy and other federal prosecutors in California led a crackdown in
October on dispensaries around the state, saying they were operating
illegally. In San Diego, most have closed.

Last week, Duffy was the target of an elaborate hoax by medical
marijuana supporters who sent out bogus news releases ostensibly from
her office, with one declaring she was cracking down on legal
pharmacies that were dispensing prescription medication. She is
considering prosecuting them for impersonating a federal officer.

In Del Mar, proponents of medical marijuana gathered signatures to
place a measure on the ballot to allow dispensaries in the city.

In June, when the City Council was deciding whether to include it on
the ballot, city lawyers sent a letter to Duffy asking several
questions, including whether city employees could be prosecuted for
issuing business permits or paperwork for the dispensaries if the
measure passed.

Duffy responded that public employees who "conduct activities mandated
by the ordinance are not immune" under federal law.

Loy contends that statement is wrong, and in his letter pointed to
several cases where courts have said public employees are protected.

Thomas Jefferson School of Law professor Alex Kreit said a federal
also protects workers. Kreit, the former head of San Diego's medical
marijuana task force, said that law was written to protect undercover
police officers who may have to possess or consume drugs from

Kreit said that courts in California and Oregon have said the law
applies to public employees, too.

However, he said, letters similar to the one Duffy sent to Del Mar
have been sent by federal prosecutors in other states where medical
marijuana laws are being considered.
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