|Although the medical marijuana movement received a devastating blow last year when the U.S. Supreme Court negated legal protections in 11 states, lawyers involved in several pending actions say the issue is far from dead.|
There is a high level of political support for medical marijuana, and clearly that affects the feds, said Ethan Nadelmann, executive director of the New York-based Drug Policy Alliance. They've been changing their message from, 'There's no such thing as medical marijuana' to 'We're not going to harass the sick and the dying.' That's been an important evolution.
According to attorney Joseph Elford, the DEA has limited its dispensary crackdowns to two situations - facilities that have a connection to other drug investigations and instances where local authorities have requested a federal bust.
It's actually played out in somewhat of a comfortable fashion, said Elford, chief counsel for San Francisco-based Americans for Safe Access. In San Francisco, where there are about 30 dispensaries and a city ordinance that regulates them the feds have not made any effort to bust them.
But when the federal government does prosecute, the Supreme Court has eliminated any defense based on state medical marijuana laws. In June 2005, the Court ruled in Gonzales vs. Raich, 125 S. Ct. 2195, that state medical marijuana laws pose no barrier to federal drug enforcement.
As a result, lawyers who champion the medical use of marijuana are fighting on several fronts to regain their legal footing. The battle is being played out most prominently in California, where the DEA has cracked down on storefront cannabis dispensaries that were legalized under state law in 1996 and arrested several individuals who had permission under state law to use the drug for medicinal purposes.
In 1996, California became the first state to allow residents to possess and cultivate marijuana if doctors recommended the drug. Since then, 10 more states - Alaska, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Rhode Island, Vermont and Washington - have passed similar laws. (Arizona also passed a medical marijuana law in 1996, but it has been hung up in legal battles ever since.)
Nadelmann believes a statute would pass in every state if put on the ballot, and his confidence is supported by a 2005 Gallup poll that found 78 percent of Americans support making marijuana legally available for doctors to prescribe in order to reduce pain and suffering.
Of the eight states that have put the issue on the ballot, all eight have passed the measure.
But in the wake of Raich those laws are virtually meaningless, since the court clearly ruled that federal agents have the right to arrest and prosecute users, regardless of how sick they are or whether they have documented permission to use marijuana under state law.
Fresno lawyer Robert Rainwater represents Dustin Costa, a man who legally uses medical marijuana under California law, but faces federal criminal charges for cultivation, possession with intent to distribute, and possession of a firearm. Rainwater told Lawyers USA that medical marijuana is pretty much dead as an issue that he can use at trial.
I'll try to put it in medical evidence, he said, but the feds don't allow it. It's as simple as that.
Elford, of Americans for Safe Access, has several pending cases, including that of Ed Rosenthal, a California man who was arrested by federal authorities in 2002 and convicted by a federal jury of growing marijuana.
But only days after rendering their decision, seven of the 12 jurors held a press conference after reading in newspapers that the man they'd convicted was a legal grower who was providing marijuana for people who relied on it for medical purposes. The seven jurors denounced their own verdict.
Although U.S. District Court Judge Charles Breyer had ordered the medical evidence withheld from the jury, he sentenced Rosenthal to just one day in jail. Several press accounts quoted the judge as saying that the extraordinary, unique circumstances of this case were not covered by the usual sentencing rules, so he imposed the lightest term possible.
The 9th Circuit heard the case on appeal, and on April 26 overturned Rosenthal's conviction based on evidence that two jurors had learned about the medical marijuana angle during trial, contacted a lawyer to ask if they could refuse to convict on conscientious grounds, and were advised not to do so. The government has 90 days from April 26 to file an appeal.
But in the meantime, Elford said his client was not satisfied with merely getting off - he wants to address the issue head on. In keeping with his client's wishes, Elford has petitioned the court for en banc review to reexamine the exclusion of the medical marijuana evidence.
In another closely watched case, County of Santa Cruz vs. Ashcroft, a 250-member hospice group, the Wo/Men's Alliance for Medical Marijuana (WAMM) is facing charges of growing and distributing marijuana to its members. In 2002, the DEA raided WAMM's facilities and seized plants. WAMM sued, becoming the first public entity to file a legal action against the federal government over medical marijuana.
The Raich decision scuttled that effort, but in February WAMM filed an amended complaint asserting a Tenth Amendment claim, arguing that the states have the right to regulate the health and welfare of their own citizens.
To strengthen that claim, the city of Santa Cruz established an Office of Compassionate Use last fall that will provide marijuana to qualified users, but only if the plaintiff prevails.
According to Allen Hopper, senior staff attorney at the ACLU Drug Law Reform Project, the city's direct involvement in the distribution of medical marijuana gives it the right under the Tenth Amendment to opt out of federal drug enforcement.
The federal government has engaged in a policy of using its criminal-enforcement powers in a way that violates the Tenth Amendment, Hopper said. They're trying to force California to re- criminalize medical marijuana. And you can't do that.
On the other side of the country, a University of Massachusetts scientist has filed suit against the DEA seeking the right to grow marijuana for research purposes. Currently, the federal government holds a monopoly on research marijuana; the National Institute of Drug Abuse produces the only supply of legal marijuana in the country at the University of Mississippi.
Hopper, who is representing plaintiff Lyle Craker, contends that DEA has choked off research that could definitively answer questions about marijuana's medical use. The suit claims that a tightly controlled independent research operation like the one Craker has proposed is badly needed.
The federal government is very concerned that if marijuana is found to be useful as medicine, that their propaganda campaign about marijuana being an evil, deadly drug will lead people to see that the emperor has no clothes, Hopper said.
The Craker case has been fully briefed by both sides before an administrative law judge. The judge's opinion will only be advisory.
In addition to the conflict between state and federal law, the medical marijuana issue has also given rise to workplace disputes, where employees' legal ingestion of marijuana runs afoul of employers' policies.
The California Supreme Court will hear one of the preeminent cases, Ross vs. Ragingwire Telecommunications.
Plaintiff Gary Ross suffered back injuries during his service in the U.S. Air Force and a doctor recommended marijuana to ease his pain.
When Ross was hired as a computer hardware technician at Ragingwire, he provided the company with his doctor's recommendation that he use marijuana to ease the pain, according to his lawyer, Stewart Katz of Sacramento. But Ross was fired on his eighth day on the job when a pre-employment drug test came back positive for marijuana.
It's sort of perverse when someone is protected by the Compassionate Use Act, but it's not enough for him to keep a job, Katz said.
Ross filed suit for employment discrimination, but a trial court and intermediate appellate court focused on the illegality of marijuana under federal law and told Ross he had no cause of action.
In December 2005 the state supreme court agreed to hear the case.
This article was originally published in Lawyers USA, a sister publication.