MARIJUANA ANTI-PROHIBITION PROJECT
ANALYSIS AND EVALUATION OF THE “WHITE PAPER” ISSUED BY
RIVERSIDE COUNTY DISTRICT ATTORNEY GROVER TRASK ENTITLED “MEDICAL MARIJUANA – HISTORY AND CURRENT COMPLICATIONS.”
September 21, 2006
Prepared by
Kenneth Michael White, esq.
Attorney-at-Law
PO Box 931, Upland, CA 91785
kenneth.white@cgu.edu
This analysis criticizes the White Paper issued by the Riverside County District Attorney’s Office titled “Medical Marijuana: History and Current Complications.” The DA’s conclusion that “the United States Supremacy Clause renders California’s Compassionate Use Act of 1996 and Medical Marijuana Program Act of 2004 illegal” is incorrect as a matter of both law and common sense. The following is an explication of the problems with the DA’s position regarding the current status of medical marijuana jurisprudence. In short, the DA’s opinion is misleading and ought not be followed.
THE PROBLEMS WITH THE DA’S ANALYSIS OF
THE “HISTORY OF MEDICAL MARIJUANA”
The DA (White Paper, p. 1) states that “evidence that marijuana lessens the symptoms of any medical condition is largely anecdotal.” The DA also states that “medical marijuana is normally administered by smoking and not a single Federal Drug Administration approved medication is smoked.”
Problem 1: In 1999, the Institute of Medicine of the National Academy of Sciences issued a report, “Marijuana and Medicine: Assessing the Science Base” concluding that even in smoked form marijuana has medicinal uses. Furthermore, the Medical Board of California has issued guidelines for the recommendation of cannabis. Medical marijuana is a fact of science, not advocacy.
Problem 2: Marijuana can be used for medical purposes in many ways. Patients can smoke it, vaporize it, eat it, or apply it topically. In any case, the manner in which people take their medicine under doctor’s orders is of no business of the DA—at least not until there are facts to suggest that marijuana is being diverted for non-medical purposes. But it should not be assumed that the people who have a serious illness and a doctor’s recommendation to use marijuana for medical purposes will exercise their right in a way that causes harm, because it is unreasonable to suspect that people misuse their medicine generally.
Problem 3: Whether the Federal Drug Administration or any other entity of the Federal Government recognizes California’s 1996 Compassionate Use Act or 2003 Medical Marijuana Program Act is irrelevant as far as officials sworn to uphold the Constitution of California are concerned. The United States Supreme Court held in Gonzales v. Raich (2005) 125 S.Ct. 2195 that “federal authorities may enforce provisions of the federal Controlled Substances Act that criminalize simple marijuana possession and use (see 21 U.S.C. § 844(a)(1)) against persons whose possession and use of marijuana is legal as a matter of state law under California’s Compassionate Use Act” (California Attorney General, “Bulletin to All California Law Enforcement Agencies,” June 22, 2005) (emphasis in the original). What the federal authorities “may” do (subject seriously ill people to the criminal justice system for using marijuana medically) the DA shall not do, because the “state courts do not enforce the federal criminal statutes” (see People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1445-1446). Furthermore, Article III of the Constitution of California makes it clear that local officials have no power “to declare a statute unenforceable, or to refuse to enforce a statute, on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations” (see also Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055) (holding that local officials cannot unilaterally refuse to comply with state law without first seeking the guidance of a court of law). Furthermore, the DA’s reliance on federal law to interpret the Compassionate Use Act is misplaced, because on July 18, 2002, a unanimous California Supreme Court ruled that the Compassionate Use Act “involve[s] state law alone” (see People v. Mower, 28 Cal.4th 457, 465, footnote 2). In sum, the DA’s position regarding medical marijuana would destroy the system of dual sovereignty, i.e., federalism, created by the United States Constitution (see Printz v. United States (1997) 521 U.S. 898, 932).
THE PROBLEMS WITH THE DA’S ANALYSIS OF “FEDERAL LAW”
The DA (White Paper, p. 1) states, “Federal law clearly and unequivocally states that all marijuana related activities are illegal.” The DA (White Paper, p. 2) also states, “Under the Supremacy Clause, the federal regulation of marijuana, pursuant to the Commerce Clause, supersedes any state’s regulation, including California’s.”
Problem 4: The Court in Gonazles was not as unequivocal as the DA would have it. The Court noted that if, after trial, marijuana was shown to have medical value—given the 1999 report referenced above, how could it not?—then federal law would likely have to be amended to accommodate the medical use of cannabis. Also, the Court strongly suggested that substantive due process protects an individual patient from federal criminal sanctions for using medical marijuana. Furthermore, the Court also suggested that Congress ought to revisit the issue of medical marijuana prohibition.
Problem 5: The DA reaches a conclusion about federal supremacy, even though no court has declared it in the case of California’s medical marijuana laws. Furthermore, there is no merit to the DA’s argument. California law decriminalizes the possession, cultivation, and distribution of medical marijuana under certain circumstances. Not subjecting a person to criminal sanctions is not a federal crime (see California Attorney General, Letter “RE Department of Health Service’s Questions Regarding Medical Marijuana Identification Cards and Federal Law,” July 15, 2005). Furthermore, California law does not prevent the Federal Government from enforcing federal law, but it does prevent California officials from doing so. As the California Attorney General has opined: “In our view, [the] express policy of decriminalization must necessarily govern the exercise of discretionary…powers” (see California Attorney General, “Bulletin to All California Law Enforcement Agencies,” June 22, 2005).
THE PROBLEMS WITH THE DA’S ANALYSIS OF “CALIFORNIA LAW”
The DA (White Paper, p. 2) states, “Despite their illegality, the medical marijuana laws in California are specific.” The DA (White Paper, p. 3) also states, “Relatively few individuals will be able to assert the affirmative defense in the [Compassionate Use Act]. To use it a person must be a ‘qualified patient,’ ‘primary caregiver,’ or a member of a ‘cooperative.’ Once they are charged with a crime, if a person can prove an applicable legal status, they are entitled to assert this statutory defense.”
Problem 6: No court has declared California’s medical marijuana laws illegal. The DA is unilaterally substituting his personal opinion for the law, which he is forbidden to do (see Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055). Furthermore, the medical marijuana laws in California are specific, and thus the DA is obliged to follow them, not usurp the role of the judiciary and declare them unconstitutional.
Problem 7: The DA does not explain why he thinks there are only a “few” qualified patients and/or caregivers in California. According to one estimate, there are around 200,000 medical marijuana patients in California (see McClure (June 2006) “Fuming Over Pot Clubs,” California Lawyer Magazine). But even if the number of qualified patients is one, the public good is still not served by the DA’s implication that such a person ought to be “charged with a crime” and forced to assert a “statutory defense” in court. A unanimous California Supreme Court held in People v. Mower (2002) 28 Cal.4th 457, 468-469, 471 that “law enforcement must have probable cause before they lawfully arrest a person for any crime…Thus, within its scope, section 11362.5(d) [of the Compassionate Use Act] renders possession and cultivation of marijuana noncriminal—that is to say, it renders possession and cultivation of the marijuana noncriminal for a qualified patient or primary caregiver.” Put simply, the DA cannot imply that medical marijuana is solely for the courts to settle—unless there are facts to suggest that a person showing proof of qualified status to possess medical marijuana is diverting it for non-medical purposes, there is no cause to subject that person to criminal sanction or prosecution under California law.
THE PROBLEMS WITH THE DA’S ANALYSIS OF “A STRICT CONSTRUCTION OF CALIFORNIA LAW”
The DA (White Paper, p. 3) states, “When California’s medical marijuana laws are strictly construed [the California Attorney General and the DA] come to a point of agreement. We believe that Gonzales v. Raich does affect California law. However, we also acknowledge that the California statutes offer some legal protection to ‘individuals within the legal scope of’ the acts…Conversely, all medical marijuana establishments that fall outside the letter and spirit of the statutes are not legal; including dispensaries and store-front facilities. These establishments have no legal protection. The Attorney General’s opinion does not present a contrary view.”
Problem 8: The DA contradicts itself. On the one hand, the DA claims to be in accord with the California Attorney General regarding medical marijuana policy. On the other hand, the DA claims Raich impacts California law. The California Attorney General has expressly and consistently held that Raich does not impact California law. The DA cannot rationally have it both ways—either the DA agrees with the California Attorney General that “California law enforcement agencies should not, because of Raich, change their current practices for the non-arrest and non-prosecution of individuals who are within the legal scope of California’s Compassionate Use Act” (see California Attorney General, “Bulletin to All California Law Enforcement Agencies,” June 9, 2005) or the DA does not. The DA’s position suggests a discord with the “top cop” in California, because the California Attorney General has many times presented a “contrary view” to the DA (see “Bulletin to All California Law Enforcement Agencies,” June 9, 2005, and June 22, 2005; Letter “RE Department of Health Service’s Questions Regarding Medical Marijuana Identification Cards and Federal Law,” July 15, 2005).
Problem 9: The Medical Marijuana Program Act expressly exempts from criminal sanction or prosecution qualified patients, caregivers, or “any individual who provides assistance to a qualified patient or a person with an identification card, or his or her designated primary caregiver” who opens or maintains “any place” for the purpose of “selling, giving away, or using” medical marijuana or receiving “compensation for actual expenses” (see Cal. Health & Safety § 11362.765(a)(b)(1)(2)(3)(c)). Thus, despite the DA’s claim otherwise, “dispensaries and store-front facilities” are expressly allowed by California law.
THE PROBLEMS WITH THE DA’S ANALYSIS OF “PRIMARY CAREGIVER”
The DA (White Paper, p. 4) states, “It is important to note that it is almost impossible for a store-front medical marijuana business to gain true primary caregiver status...Courts have found that a patient’s act of signing a piece of paper declaring that someone is a primary caregiver does not necessarily make them one.”
Problem 10: According to the Medical Marijuana Program Act it is not “impossible” for a person to be designated as a caregiver by multiple patients (see Cal. Health & Safety § 11362.7(d)(2)). Furthermore, there is no reason why such a person could not open “any place” for the purposes of fulfilling the function of a caregiver, including a “store-front” (see Cal. Health & Safety § 11362.765(a)).
Problem 11: The DA does not cite which courts have ruled that “a patient’s act of signing a piece of paper declaring that someone is a primary caregiver does not necessarily make them one.” Without a citation to the law, the DA’s statement cannot be verified.
THE PROBLEMS WITH THE DA’S ANALYSIS OF “STORE-FRONT MEDICAL MARIJUANA COOPERATIVES AND DISPENSARIES”
The DA (White Paper, pp. 4-5) states, “Since the passage of the Compassionate Use Act of 1995, many store-front medical marijuana businesses have opened in the state…These facilities operate as if they are pharmacies…Although Health and Safety Code section 11362.775 offers some state legal protection for true collectives and cooperatives, no parallel protection exists in the [Medical Marijuana Program Act] for any store-front business providing any narcotic.” The DA also cites a “common dictionary definition of collectives” and states, “Medical marijuana businesses, of any kind, do not meet this legal definition.” The DA also states, “Actual medical dispensaries are commonly defined as offices in hospitals, schools, or other institutions from which medical supplies, preparations, and treatments are dispensed…Clearly, it is doubtful that any of the store-front medical marijuana businesses currently existing in California can claim that status. Consequently, they are not primary caregivers and are subject to prosecution under both California and federal laws.”
Problem 12: Again, the DA cannot have it both ways. The DA cannot call an enterprise akin to “pharmacies” and then assert that it in no way resembles “offices in hospitals, schools, or other institutions from which medical supplies…are dispensed.” Pharmacies resemble offices in hospitals and “store-fronts.” The DA is putting forth an internally inconsistent argument here.
Problem 13: There is no reason to cite a “common dictionary definition of collectives” when there is statutory language on point (see Cal. Health & Safety § 11362.765).
Problem 14: There is no reason under California law to prosecute qualified patients and/or primary caregivers who associate with each other to furnish themselves the medicine they need (see People v. Urziceanu (2005) 132 Cal.App.4th 747).
Problem 15: The DA does not enforce the federal criminal code (see People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1445-1446).
THE PROBLEMS WITH THE DA’S ANALYSIS OF “RIVERSIDE COUNTY”
The DA (White Paper, pp. 5-6) states, “The County of Riverside is currently considering ordinance number 348.4403 which provides for the zoning and licensing of medical marijuana cooperatives in the county. As discussed above, all such store-front medical marijuana businesses are illegal. Consequently, all are subject to criminal prosecution.”
Problem 16: The County of Riverside has been considering ordinance number 348.4403 for quite some time now. For the DA to just now issue an opinion within days before the County is to consider the ordinance shows a lack of comity. The DA should have expressed its concerns earlier in the process; waiting so long to speak on the issue gives the impression of mischief.
Problem 17: Again, the DA is incorrect to assert that “store-front” dispensation is per se illegal under California law (see Cal. Health & Safety Code § 11362.765).
THE PROBLEMS WITH THE DA’S ANALYSIS OF “PRACTICAL ISSUES IN CALIFORNIA”
The DA (White Paper, pp. 6-7) cites an article in California Lawyer Magazine as accurately depicting “the mechanics” of all the medical marijuana distribution that takes place in California. The DA also states, “It is almost impossible for a store-front medical marijuana business to gain true primary caregiver status…The very fact that the relationship is instant belies any consistency in their relationship and the requirement that housing, health, or safety is consistently provided.”
Problem 18: The DA does not explain why this one magazine article captures the entire range of medical marijuana distribution that is possible and/or actually occurring. As the DA notes (White Paper, p. 4): “Since the passage of the Compassionate Use Act of 1996, many store-front medical marijuana businesses have opened in the state.” So, how do we know the one operation depicted in the magazine article cited by the DA accurately reflects the experience of all the various associations involving medical marijuana in California?
Problem 19: The DA asserts that a caregiver relationship must be “consistent,” but the DA fails to take into account that the Medical Marijuana Program Act includes within the definition of “primary caregiver” any “individual who has been designed as a primary caregiver by more than one qualified patient or person with an identification card” (see Cal. Health & Safety Code § 11362.7(d)(2)). Thus, the status of a primary caregiver does not rest solely on the relationship being “consistent” in the sense that the DA asserts, as designation by a qualified patient is sufficient to create a primary caregiver relationship.
Problem 20: The DA argues that a primary caregiver relationship cannot start in an “instant” but does not explain why not or how else it could reasonably start. The beginning of a relationship always starts instantly, at least at initially. The DA’s position would make it impossible for anyone to designate a primary caregiver.
THE PROBLEM WITH THE DA’S ANALYSIS OF “SECONDARY EFFECTS OF DISPENSARIES AND SIMILARLY OPERATING COOPERATIVES”
The DA (White Paper, pp. 7-8) states, “Throughout the state, many violent crimes have been committed that can be traced to [medical marijuana dispensaries and cooperatives]…Store-front medical marijuana businesses are very dangerous enterprises.”
Problem 21: The DA cites five sensational crimes from 2004 to 2005 as evidence that medical marijuana distribution is dangerous. Does this mean that there were no crimes associated with medical marijuana distributors from 1996 to 2004? Are five crimes, even violent ones, significant in the span of 10 years? How does the rate of violent crime associated with medical marijuana distribution compare to the rate of violent crime associated with traffic in alcohol or other illicit drugs? Why should a few morally bankrupt criminals be allowed to push 200,000 qualified patients into the street to obtain their medicine?
THE PROBLEM WITH THE DA’S ANALYSIS OF “LIABILITY ISSUES”
The DA (White Paper, p. 8) states, “With respect to issuing business licenses to medical marijuana store-front facilities a very real issue has arisen: counties and cites are arguably aiding and abetting criminal violations of federal law.”
Problem 22: The DA takes a position here that is contrary to the California Attorney General and the United States Supreme Court. As the California Attorney General (Letter “RE Department of Health Service’s Questions Regarding Medical Marijuana Identification Cards and Federal Law,” July 15, 2005) makes clear: “the State of California, and state officials acting in their capacity to implement a valid state law, cannot be “persons” within the meaning of the federal criminal statutes relating to marijuana. A conclusion to the contrary would undermine the system of ‘dual sovereignty’ created by the United States Constitution…The federal government’s decision to criminalize the use and possession of marijuana—for all purposes—does not require California to do the same. It is well-settled that the ‘Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs’ (Printz v. United States (1997) 521 U.S. 898, 925; New York v. United States (1992) 505 U.S. 144, 161).”
THE PROBLEMS WITH THE DA’S “CONCLUSION”
The DA (White Paper, pp. 8-9) states, “In light of the United States Supreme Court’s decision and reasoning in Gonzales v. Raich, the United States Supremacy Clause renders California’s Compassionate Use Act of 1996 and Medical Marijuana Program Act of 2004 illegal…Furthermore, store-front medical marijuana businesses are prey for criminals and create easily identifiable victims…Additionally, illegal medical marijuana facilities have the potential for creating liability issues for counties and cities…The Riverside County District Attorney’s Office believes that the cooperatives being considered are illegal and should not be permitted to exist within the County’s borders. They are a clear violation of federal and state law, they invite more crime, and they compromise the health and welfare of the citizens of this County.”
Problem 23: In the same way the City and County of San Francisco cannot usurp the judicial role and declare family laws unconstitutional, neither can the DA declare California’s medical marijuana laws unconstitutional. To date, no court has declared California’s medical marijuana laws preempted by federal law; therefore, the DA must comply with them as they are mandatory (see Cal. Const. Art. I, § 26; Art. III, §3.5c).
Problem 24: The DA mischaracterizes medical marijuana distribution by describing it as “prey” for crime and confusing “store-front” dispensaries with other kinds of collectives and declaring both illegal. There is no authoritative basis to support the DA’s position regarding California’s medical marijuana laws.
Problem 25: The health and welfare of the citizens of this County are protected when elected officials comply with the law. As John Adams said: We are “a government of laws, and not of men” (see Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 10055, 1068). The DA’s position on medical marijuana undermines the rule of law because it undermines the federalism created by the United States Constitution and the democracy created by the Constitution of California.
CONCLUSION
The DA’s position regarding medical marijuana is prejudicial, misleading, and contradictory. Accordingly, the County ought to continue to perform its duty under the law and proceed to regulate the distribution of medical marijuana in according with California law despite the objection of the DA. If there is a particular violation of California law, then the DA may prosecute that case before a jury; however, the DA may not attempt to declare laws invalid outside of a courtroom.
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