Pubdate: Wed, 08 Aug 2012
Source: North County Times (Escondido, CA)
Copyright: 2012 North County Times
Author: David Ogul


A U.S. attorney's office opinion on a medical marijuana measure in Del
Mar has led to a robust debate over whether the opinion was more of a
threat than an impartial perspective.

At issue is a November ballot measure that would force Del Mar to
allow medical marijuana dispensaries. Voters will be deciding similar
measures in Solana Beach and the East County city of Lemon Grove.

U.S. Attorney Laura Duffy, in a July 17 letter addressed to Del Mar
City Attorney Leslie Devaney, said city employees "who conduct
activities mandated by the ordinance are not immune from liability
under the (Controlled Substances Act.)

"The United States Attorney's Office will evaluate all potential civil
and criminal enforcement actions on a case-by-case basis in light of
the priorities of the Department of Justice and the (U.S. Attorney's
Office's) available resources," the letter said.

That prompted a response last week from the ACLU's San Diego office
saying Duffy had overreached her authority.

ACLU attorneys David Loy and Novella Coleman told Duffy in an Aug. 2
letter that her action was "unprecedented and amounts to unjustified
interference in local legislative matters, if not thinly veiled
intimidation of city officials and thus potentially of voters."

Duffy is standing her ground.

"My letter to the City of Del Mar was in direct response to a June 26,
2012, written inquiry from Del Mar's City Attorney's Office," she said
in a statement released by her office. "My office was asked whether or
not Del Mar's proposed medical marijuana ordinance could subject city
employees to federal prosecution under the Controlled Substances Act
(CSA). I stand by my response."

She added, "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."

The opinions have led to robust debate on blogs and social networking
sites such as Twitter.

Jessica McElfresh, an attorney with the Patient Care Association that
is behind the initiatives, said federal prosecution of city employees
for carrying out local laws "would be an action that would have
consequences far beyond medical marijuana."

The Del Mar City Council reluctantly agreed to place the measure on
the ballot after Citizens for Patient Rights, a San Diego-based
political committee working with the Patient Care Association,
collected 961 signatures, more than three times the 303 valid
signatures that were needed to force an election. The city clerk's
office said 554 signatures were deemed invalid.

The initiative is identical to proposals put forth in Solana Beach and
Encinitas, along with the Lemon Grove and La Mesa.

The group secured nearly double the 807 signatures it needed in Solana
Beach, and the City Council there also placed the measure on the
November ballot. The Lemon Grove City Council voted unanimously
Tuesday night to place the measure on the ballot.

Citizens for Patient Rights collected nearly 6,000 signatures in
Encinitas, some 2,000 more than required to qualify the item for a
public vote, but the City Council may not meet again until later this
month ---- to late to get the measure on the November ballot.

The cities were targeted because they had the highest rate of voters
supporting Proposition 19, a 2010 measure that would have legalized
marijuana statewide.

Duffy was not the only federal official to warn Del Mar officials
about the potential fallout from a successful ballot measure. Patrick
M. Kelly, supervisory special agent in the Drug Enforcement
Administration's San Diego office, called for the council to reject
the proposal before it voted on the measure.

"The DEA and U.S. attorney's office has taken a zero tolerance toward
violations of federal law," he said.

Bob Mahlowitz, Del Mar's deputy city attorney who has been working on
the issue there, backed Duffy.

"I think the ACLU is misconstruing what the U.S. attorney's office
did. They did not threaten anyone," he said. "We asked her office to
take a look at the initiative and give us an opinion on the potential
impacts. That's precisely what they did."

McElfresh saw it differently.

"U.S. Attorney Laura Duffy is free to enforce federal law. However,
Ms. Duffy is not permitted to undermine or threaten state or local
officials who elect to enforce or create state or local laws governing
medical marijuana."

She suggested, however, that should Del Mar voters pass the measure,
it would be "unlikely" that Duffy would take action against city officials.

More than 55 percent of state voters in 1996 approved the use of
medical marijuana in California.
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MAP posted-by: Matt