Pubdate: Wed, 17 Aug 2016
Source: San Francisco Chronicle (CA)
Copyright: 2016 Hearst Communications Inc.
Author: Bob Egelko


In a potential legal breakthrough for medical marijuana, a federal 
appeals court ruled Tuesday that the Justice Department cannot 
prosecute anyone who grows, supplies or uses the drug for medical 
purposes under state law because Congress has barred federal intervention.

The decision by the Ninth U.S. Circuit Court of Appeals in San 
Francisco was written by one of its most conservative judges, 
Diarmuid O'Scannlain, and was the first by any appeals court to 
prohibit federal prosecutions under spending restrictions enacted by 
Congress. First passed in 2014 and renewed through September, the 
budget amendment forbids the Justice Department to spend any money to 
prevent California and other states from "implementing their own 
state laws" that authorize the medical use of marijuana.

The restrictions do not apply to state laws authorizing the personal 
use of marijuana, which California voters will consider in November. 
Although the drug remains illegal under federal law, the Obama 
administration says it has instructed federal prosecutors not to file 
charges against those who are following state laws.

But prosecutions and other federal actions against state-authorized 
marijuana suppliers have not ended. The government is still trying to 
shut down dispensaries, like the huge Harborside Medical Center in 
Oakland, and has refused to dismiss criminal cases it filed in the 
past, like those of the medical marijuana retailers and growers in 
Tuesday's case.

In court, the administration argues that it still has the authority 
to prosecute individual users and suppliers, because it is not 
directly suing the state or preventing it from implementing its law. 
The appeals court disagreed.

The Justice Department "prevents (states) from implementing their 
laws that authorize the use, distribution, possession or cultivation 
of medical marijuana by prosecuting individuals" who do any of those 
things, O'Scannlain said in the 3-0 ruling. "If the federal 
government prosecutes such individuals, it has prevented the state 
from giving practical effect to its law."

Lawyers representing the group of defendants in the case argued the 
budget restrictions prohibited all federal prosecutions in medical 
marijuana states, but O'Scannlain said Congress has shielded only 
those who are actually complying with state law, not those suspected 
of violating both state and federal laws. That means the Justice 
Department can still use federal law to file charges in marijuana 
cases, or continue prosecutions it has already started, but a federal 
judge will dismiss the charges if the judge determines the defendant 
was following state law.

The ruling is still a significant victory, said lead defense attorney 
Marc Zilversmit, who represented owners of marijuana stores in Los 
Angeles and growers in the Los Angeles and San Francisco Bay areas.

"It says we're right, that Congress has defunded DOJ's war on medical 
marijuana," Zilversmit said.

He said many issues remain to be decided, including whether a medical 
marijuana dispensary and all of its employees can be federally 
prosecuted if a single employee provided the drug in violation of state law.

The Justice Department declined to comment. The department could ask 
the full appeals court for a new hearing or appeal to the U.S. Supreme Court.

In a similar ruling in October, U.S. District Judge Charles Breyer of 
San Francisco said the congressional restrictions prohibit federal 
drug enforcers from shutting medical marijuana dispensaries that 
comply with state law. Tuesday's decision affects criminal cases and, 
because it came from an appeals court, is binding on federal judges 
in California and the eight other Western states in the Ninth Circuit.

California, in a 1996 voter initiative, became the first state to 
legalize medical use of marijuana. About half the states now have 
similar laws, and the court said 40 states, along with Washington, 
D.C., Guam and Puerto Rico, have some version of a law allowing 
medicinal use of pot or a related herb. Four states and Washington, 
D.C., have legalized personal use of the drug, and it will be on the 
November ballot in California and four other states.

Despite increasing public support to relax federal prohibitions, 
however, the Obama administration refused last week to remove 
marijuana from the category of drugs that cannot be used or 
prescribed legally because they are considered dangerous and subject 
to abuse, with no recognized medical benefits.

The decision was a disappointment, but the court ruling "restores 
some sanity to the way the federal government respects medical 
marijuana patients," said Rep. Sam Farr, D-Carmel, co-author of the 
congressional budget restrictions.

"California and many other states allow marijuana to be used for 
medical purposes, yet the federal government still considers it as 
dangerous as heroin," Farr said in a statement. "While I'm pleased to 
see the amendment that I worked on with my colleagues being 
interpreted by the courts correctly, there needs to be a permanent 
change in federal policy to ensure medical marijuana patients aren't 
criminalized in states that allow it."
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MAP posted-by: Jay Bergstrom