By John Hoeffel on October 29, 2011
In suing U.S. Atty. Gen. Eric Holder and the top federal prosecutor in Northern California, Americans for Safe Access accuses the Obama administration of using coercive tactics to interfere with powers delegated to the states.
Medical marijuana advocates want a federal court to halt the recent raids and threats of prosecution that have significantly stepped up the Obama administration's assault on dispensaries and growers.
Americans for Safe Access, an advocacy group based in Oakland, has sued U.S. Atty. Gen. Eric Holder and Melinda Haag, the top federal prosecutor in Northern California, accusing them of violating the Constitution's 10th Amendment by using coercive tactics to interfere with powers delegated to the states.
The four U.S. attorneys in California have dramatically ramped up efforts to shut down medical marijuana operations and have advised cities and counties that they cannot adopt regulations that effectively authorize the distribution of the federally controlled substance.
"They're not just enforcing marijuana laws, they are doing something extremely unusual in an effort to quash the medical marijuana programs in the various states," said Joe Elford, chief counsel for Americans for Safe Access. "They're not allowed to commandeer the lawmaking functions of the state."
Thom Mrozek, a spokesman for the Department of Justice, declined to comment.
The 17-page lawsuit filed Thursday in U.S. District Court in San Francisco takes aim at a critical issue that remains unsettled even though California voters approved medical marijuana in a ground-breaking initiative in 1996. Because marijuana remains illegal for all uses under federal law, municipalities and states have struggled with how to regulate it for medical use.
Federal prosecutors in California have warned some cities against approving ordinances that authorize marijuana cultivation and distribution, such as licensing or issuing permits to dispensaries. A recent California appellate court ruling reached the same conclusion, but other appellate courts in the state have instead ruled that federal law does not trump state medical marijuana laws.
"The federal government has instituted a policy to dismantle the medical marijuana laws of the state of California and to coerce its municipalities to pass bans on medical marijuana dispensaries," the lawsuit says. "To this end, the government has pursued an increasingly punitive strategy, which has involved criminal prosecutions of medical marijuana providers with Draconian penalties and letters threatening local officials if they implement state law."
The lawsuit cites several recent examples of U.S. attorneys telling cities that officials could face federal prosecution. It notes that Chico voted to rescind its recently adopted ordinance after a federal prosecutor met with the city attorney, city manager and police chief. City officials in Eureka received a letter saying that their plan to license large-scale cultivation violates federal law. And a federal prosecutor's warning to Arcata officials led them to suspend medical marijuana dispensary permits.
Federal agents this month also raided a collective in Mendocino County that has cooperated with a program to regulate growers, cutting down 99 plants. The lawsuit notes that Mark Perillo Sr., a 48-year-old member of the collective who suffers chronic pain from a degenerative joint disease, was deprived of his share of the harvest.
"He will be impeded from obtaining his medicine because no other delivery service provides medical marijuana at the same low cost," the suit says.
Last week, California Atty. Gen. Kamala Harris warned: "An overly broad federal enforcement campaign will make it more difficult for legitimate patients to access physician-recommended medicine in California. I urge the federal authorities in the state to adhere to the United States Department of Justice's stated policy and focus their enforcement efforts on 'significant traffickers of illegal drugs.'"
Elford said that Americans for Safe Access would probably seek a preliminary injunction and expects the issue to eventually reach the U.S. Supreme Court. "I do think this is going to move pretty quickly," he said.