Medical Pot Crackdown Called Unconstitutional

marijuana plantThe Marin County medical marijuana cooperative has challenged the constitutionality of a federal push in California to go after pot clubs and close them down.  The club and one medical marijuana patient filed the constitutional challenge Nov. 3 to the crackdown just a month after four U.S. attorneys declared a coordinated action to shut down large scale pot businesses in the state.

The federal move came despite a 1996 voter-approved initiative to allow use of marijuana for medical purposes in California.

The four top federal prosecutors in the state “have threatened to use all means necessary to shut down the supply chain of medical cannabis for patients,” states the lawsuit by the Marin Alliance for Medical Marijuana.  The federal government “has also decided to directly threaten landlords, medical cannabis cooperatives, patients, media outlets and elected officials as the means to do this,” according to the suit.

The suit asks the federal court to declare the federal action a violation of a variety of constitutional rights including a claim that while prosecutors have cracked down on California, there has been no such crackdown in Colorado, where medical use is also legal.

 The lawsuit also claims violation of the Commerce Clause of the Constitution through regulation of business by between states.  The suit filed by attorney Matthew Kumin alleges the federal government is barred from initiating the enforcement actions against clubs and their clients because of a pledge made in a Santa Cruz County case not to use federal resources against patients who were in compliance with the state law.

That case, County of Santa Cruz WAMM v. Holder, C03-1802JF, included a promise to Judge Jeremy Fogel that the Dept. of Justice had changed its policy toward California and medical marijuana patients, according to Kumin.

The Crackdown

The four federal prosecutors in Sacramento, San Francisco, Los Angeles and San Diego, outlined a coordinated effort to shut down marijuana clubs and dispensaries, including issuing orders to landlords to evict some of the pot collectives or face criminal charges, according to the public statements.

The move was designed to target large, for-profit marijuana sells that have sprung up since the passage of Proposition 215 by voters, according to the prosecutors’ statement.

California allows use of medical marijuana as a defense to state accusations of illegal drug use, and many counties and a few cities have set up regulations for operating marijuana dispensaries.  But pot remains an illegal substance for all purposes under federal law, meaning dispensaries and people who use marijuana medically may be subject to federal prosecution. 

U.S. Attorney Benjamin Wagner of Sacramento’s Eastern District said the actions “include bringing criminal charges against those responsible for growing marijuana and distributing it in our district, searching grow and distribution locations, bringing forfeiture complaints against the properties involved, seizing proceeds of marijuana businesses and sending notice letters to owners of properties where marijuana is being grown or sold.”Also participating were U.S. Attorneys for San Francisco, Melinda Haag, as well as Andre Birotte Jr. of Los Angeles and Laura Duffy of San Diego.

Eastern District

Since the announced crackdown, a dozen criminal cases were filed and another six forfeiture actions were initiated, according to court records.

The Eastern District has been the most aggressive seeking to seize alleged marijuana equipment in Bakersfield and two properties in Sanger and Fresno allegedly containing thousands of marijuana plants.  In addition, bank accounts of a Fresno marijuana store, “Buds 4 Life” were seized, according to Wanger.

Other properties sought in forfeiture actions are in Rio Oso and Sacramento, California.

Criminal cases have been filed against people from Redding, Modesto, Stockton, Sacramento, Fresno and a lawyer in Los Angeles.  In addition agents searched two Southern California marijuana stores in Torrance and Garden Grove.

Deputy Attorney General James Cole said at the time of the announcement in October the Justice Department will not target individuals with serious illnesses such as cancer or their immediate caregivers.

More than 1,000 pot stores operate in the Los Angeles-based Central District alone, according to the statement.

A San Diego dispensary was part of a 77-count indictment unsealed in October that included allegations of a conspiracy to sell marijuana to teens under 18.

Case: Marin Alliance for Medical Marijuana v. Holder, C11-5349DMR

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