Federal war on medical pot challenged

August 21, 2008 - San Francisco Chronicle

A federal judge breathed new life Wednesday into medical marijuana advocates' effort to ward off the federal crackdown on medical pot in California, saying enforcement of U.S. drug laws can go too far if it seeks to interfere with state authority.

U.S. District Judge Jeremy Fogel of San Jose denied a Bush administration request to dismiss a lawsuit by Santa Cruz city and county officials and members of a medical marijuana collective whose drugs were seized by federal agents in a 2002 raid.

The Santa Cruz raid was one of many actions by federal authorities against suppliers of marijuana in California since the state's voters approved a 1996 initiative allowing individuals to grow and use pot with their doctors' approval. Federal prosecutors have shut down medical marijuana dispensaries, threatened to sue the dispensaries' landlords, won convictions against growers for violating federal narcotics laws and sought to punish doctors for recommending marijuana.

The U.S. Supreme Court and other courts have upheld the federal actions, except for the government's attempt to strip federal prescription licenses from the doctors. But Fogel said the plaintiffs in the current case may be able to show that the federal government exceeded its constitutional authority by trying to force California to repeal its medical marijuana law.

The suit claims federal prosecutors have tried to disrupt the California law by enforcement that targeted critical participants in the state system - doctors who approved their patients' marijuana use, local officials who issued state-approved identification cards to medical marijuana users, local governments whose zoning allowed pot dispensaries, and marijuana suppliers who cooperated with local governments.

Federal authorities' goal, the plaintiffs alleged, is to make it impossible for the state to distinguish between medical and recreational use of marijuana and render the state law unenforceable, interfering with California's constitutional power to enact its own laws.

Government lawyers denied any such intention and said the suit was baseless. Neither the federal drug law nor any enforcement action has required the state to change its marijuana law or enforce federal laws, they said.

The suit, if successful, "would unlawfully inject the courts into considerations of how the government is enforcing federal law, matters which the Constitution vests in the executive branch," Justice Department lawyers said in court papers.

But Fogel said Wednesday that if the plaintiffs can prove all their claims, "they may be able to show that (federal officials) are deliberately seeking to frustrate the state's ability to determine whether an individual's use of marijuana is permissible under California law."

He cited an opinion by Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals in San Francisco in the 2002 ruling on doctors who recommended marijuana. Although the federal government may prefer that California prohibit medical marijuana, Kozinski said, "it cannot force the state to do so."

Medical marijuana advocates and their lawyers called the ruling a potential breakthrough.

"For the first time, a court has recognized that a calculated plan by the federal government to undercut state medical marijuana laws is patently unconstitutional," said Graham Boyd, an American Civil Liberties Union lawyer.