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Friday, October 28, 2011

Medical Marijuana Lawyers Challenge Feds to Bust All Pot Dispensaries or Bust None

Posted By on Fri, Oct 28, 2011 at 12:45 PM

click to enlarge Pretty sure Hamilton was a pot head
  • Pretty sure Hamilton was a pot head

It's rarer these days, but you can still find some medical marijuana purveyors fond of saying how much they welcome the federal government throwing them in prison for decades.

Each dispensary in San Francisco, for example, violates the Controlled Substances Act -- hundreds, if not thousands of times a day. Legally, Uncle Sam could lock up nearly every marijuana collective operator in California, if that's what the feds wanted to do. But no collective is asking them to do that, of course, especially not after the U.S. Attorneys in California began their crackdown on the state's medical marijuana industry a month ago. But that is, in a very real way, kinda what the  Americans for Safe Access, a medical marijuana advocacy group, did when it filed a lawsuit yesterday in federal court.

"The 10th Amendment forbids [the government] from selectively employing coercive tactics" on state and local governments to compel them to do its bidding in waging the war on drugs, reads the complaint filed in federal court Thursday. In other words, the government should lock up every violator, or none at all. Also, the federal government can't spook local and state governments so badly that it essentially forces the states to use cops to dictate policy.

Could this be the landmark case that lands the government's War on Drugs before the Supreme Court? Maybe -- and that's something.

Bear with us as we wax Hamiltonian and get all Federalist: The Constitution's 10th Amendment reserves powers not specifically delegated to the Congress and federal authority to other governments, as in state or local governments. While marijuana is federally illegal, state and local governments can, nonetheless, make their own laws and must, according to the piece of paper (probably drafted on hemp paper, just like the Declaration of Independence) legally binding our states together, be left alone to do so.

The lawsuit does not attempt to overturn federal authority or change federal marijuana laws; it essentially uses federal law against itself. "Under the 10th Amendment, the government may not commandeer the law-making functions of the state or its subdivisions directly or indirectly through the selective enforcement of its drug laws," the lawsuit alleges. It's the "misuses of the Commerce Clause powers, designed to deprive the state of its sovereign ability to chart a separate course" that's the thrust of ASA counsel Joe Elford's suit.

A spokesman for U.S. Attorney Melinda Haag, named as the chief defendant in the suit, offered no comment to SF Weekly. But it appears the government may have created a monster with some recent missives.

The feds mailed notices to the cities of Chico and of Eureka, informing them that their dispensary ordinances violate federal law. The feds also sent letters to Oakland city officials, informing them that permitting marijuana factories would subject them to prosecution. That's the legal error: Locking them up is fine, but telling them how to run their cities is anathema to the spirits of Madison and Hamilton.

"I like this lawsuit," said San Francisco attorney Kenneth Wine (and as he should, seeing how he represents violators of federal law in federal court).

"While the federal government and its agents can do what they like in enforcing the federal criminal laws, they cannot compel the state to assist them," Wine said. "I suspect this case will cause the federal government in California to be very careful in the way they address state and local officials. Certainly, the threats and coercion against state and local officials by the U.S. Attorneys must stop, and likely will. For the feds to do otherwise is to put their marijuana enforcement strategy in jeopardy."

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About The Author

Chris Roberts

Chris Roberts has spent most of his adult life working in San Francisco news media, which is to say he's still a teenager in Middle American years. He has covered marijuana, drug policy, and politics for SF Weekly since 2009.


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