August 26th, 2008
Posted by Kris Hermes
When news came out about the medical marijuana guidelines issued yesterday by California Attorney General Jerry Brown, the headlines largely read, “AG: Some medi-pot dispensers may be illegal.” Specifically, the Associated Press painted a bleak picture pointing to a misperceived likelihood of local law enforcement joining the feds in raiding for-profit dispensaries.
However, it would not be an understatement to claim the guidelines as a huge victory. It is not only a victory for dispensaries, a medical marijuana distribution system that has flourished and benefited hundreds of thousands of patients over the last 10 years. But it is also a victory for patients who are still in danger of defiant and recalcitrant police.
The truth of the matter is that never before has the California Attorney General (AG) directed law enforcement in a clearer way to avoid unnecessary harassment of patients and providers. Even though Americans for Safe Access (ASA) has been working with the AG for several years and urging both Bill Lockyer and Jerry Brown to issue an official position, it was a case being litigated by ASA that finally compelled that office to act. The appellate court decision in Garden Grove v. Superior Court (Kha), a case that is now binding law for the entire state, made clear that state law was not preempted by federal law and that local police have an obligation to abide by the state’s medical marijuana law.
In the Kha case, the court ruled that if medical marijuana is wrongfully confiscated, police are required to return it to the patient or caregiver from whom it was seized. The AG took this decision and crafted a “road map” for police to establish sensible policies that take into account this new legal terrain. Although certain localities have followed in the footsteps of the California Highway Patrol policy, established as a result of ASA’s litigation, many jurisdictions continue to ignore state law. In addition to reviewing the guileines, cities and counties across the state would do well to review the CHP policy as well as more recent policies such as those established by the County of Merced.
When the AG was finally quoted by the Los Angeles Times, it was to say he hopes “the feds will back off.” Ever since the 2005 U.S. Supreme Court decision in Gonzales v. Raich, the federal DEA has been determined to undermine California’s medical marijuana laws by raiding dispensaries and threatening dispensary landlords with asset forfeiture and criminal prosecution. The AG guidelines send a clear message to the federal government that we are staying our course in California and that dispensaries, at least most of them, are law-abiding entities and should be protected by state law. Whether or not that results in less enforcement against these facilities remains to be seen. ASA flatly opposes raids on dispensaries whether by federal agents or local police, but if raids are going to occur, prosecuting cases in state court is infinitely better than prosecuting them in federal court where medical evidence is prohibited.
We at ASA believe that, after the dust settles, these guidelines will represent the final chapter in the implementation of California’s medical marijuana laws. Sure, there will be further court battles and renegade cops running afoul of the law, but finally we have official word from the top law enforcement officer in California directing local police on how to better enforce the law. That should be something to celebrate!