Vol. 20 No. 9 California Medical Marijuana Law “Trumped” By The Federal Law

June 9, 2005

On Monday, June 6, 2005 the United States Supreme Court, in the case of Gonzalez v. Raich, ruled that California ‘s law allowing marijuana to be used for medical purposes violates the U.S. Constitution’s Commerce Clause.  The Commerce Clause gives the federal government the authority to “regulate commerce…among the…states” and that includes items which are locally produced and not distributed through interstate commerce.

The Supreme Court overruled the Ninth Circuit U.S. Court of Appeal, which had held that the commerce clause did NOT apply in cases involving “…intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes….” The Supreme Court disagreed, stating that “…Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense or possess any controlled substance except as authorized by the (federal) Controlled Substances Act (CSA).”

The Court stated that federal regulation is appropriate due to the “…enforcement difficulties that attend distinguishing between marijuana cultivation locally and marijuana grown elsewhere, and concerns about diversion into illicit channels….”  The Court said that “…failure to regulate (marijuana) would leave a gaping hole in the CSA.”

As a result, the federal government’s prohibition on the possession and/or use of the drug is still law. Marijuana is still subject to seizure, and the holder subject to prosecution, by federal agencies. Additionally, the Supreme Court recently ruled that the use of the marijuana for medical purposes does not provide a defense to prosecution under the CSA.

The case  DOES NOT hold that Proposition 215 is unconstitutional, nor does it prohibit California from continuing to honor the procedures and protections set forth in Prop. 215.  What the case DOES say is that following California law will not protect a person from prosecution under federal laws.

A big problem for law enforcement is that this legal conflict puts it between the proverbial “rock and a hard place.” The conflict between California law, which basically decriminalizes possession of marijuana for medical use, and the federal law which still makes it a felony to possess it, even for medical use, creates a quandary for the California law enforcement officer. Which law governs?

This decision adds to the concerns we have expressed in the past regarding actions which might be taken by the federal government to enforce the CSA. In correspondence last year from the Director of the federal Drug Enforcement Agency, to the California Attorney General, he stated explicitly that DEA is obligated to enforce existing, lawful, federal laws, even if they conflict with state laws on the same subject.

An example of a potential conflict can be seen with the proliferation of medical marijuana distribution centers throughout the state. Cities and counties are enacting (or not) zoning ordinances addressing the issue. In some jurisdictions the centers are permitted, but regulated as to location, operating hours, etc. In others, they are prohibited. Even though Prop. 215 doesn’t explicitly authorize such centers, local law enforcement has taken no action to close them.

However, the Raich decision raises the question of whether FEDERAL law enforcement will be raiding those centers, as they have cannabis clubs in the past (e.g. the  Oakland and Santa Cruz Cannabis Clubs)? It would appear that they have that authority.

Still another concern is what law enforcement should do when a California judge dismisses a cultivation and/or possession charge against a defendant, based on Prop 215, and the judge then orders law enforcement to return the marijuana to the defendant?

Under the federal Controlled Substances Act, it is a felony to transfer or give marijuana to one not lawfully entitled to posses it. It is illogical to argue that a state court judge can ORDER a California peace officer to violate federal law by compelling the officer to transfer or give the marijuana back to the defendant.

Returning the marijuana appears to be a felony under federal law and, therefore, the court’s order would be unlawful.  The Raich decision seems to reinforce that position since it clearly states that the federal law trumps California law on this subject. It is logical, therefore, that a challenge to such an order would be best fought in the federal courts. A petition, by the city or county, to the federal court to review the actions of a state court, as it pertains to federal law, is probably the way to proceed.


State and local peace officers are not obligated to enforce federal law (although they may do so) and, therefore, this decision places no additional burden on them. It does, however, put  California  law enforcement in a difficult position since there is a direct conflict between California law and the federal law.  If California peace officers enforce the state law, they violate federal law; conversely, if they enforce the federal law, they go contrary to their own state law.

Although federal agents have the authority to arrest an individual for possession or use of marijuana for personal, medical reasons, that is highly unlikely. Statistics show that federal agents rarely, if ever, make such arrests. It is local law enforcement which is normally involved.

In California , therefore, local law enforcement can still rely on Prop 215 which, in essence, makes possession for medical purposes lawful if it is based on a doctor’s recommendation.  In fact, the California Attorney General has apparently stated that the Raich decision doesn’t change police priorities, nor the law of California , and basically that it will have no negative impact. That is probably true but only time (and the actions of the federal government) will tell.

We believe, in any event, that it is more important than ever for cities and counties to develop and adopt a zoning regulation regarding medical marijuana distribution centers opening in their communities.  Raich supports a jurisdiction’s decision to prohibit such centers, since allowing them would require “permitting” a venture which, the U.S. Supreme Court has just ruled, violates federal law.

What, in fact, is needed to resolve this conflict is congressional action.  It is the decision for Congress to make, as to whether it wants to amend the CSA. To conform these two inconsistent laws requires that the marijuana be deleted from the CSA’s list of prohibited drugs, or California rescinds Proposition 215.

Neither action appears likely to occur – nonetheless, that is what is necessary. The Supreme Court’s decision is the final word on the subject, absent legislative action either by Congress or by California.

As always, we urge law enforcement management to confer with legal counsel before undertaking action which requires legal interpretation. If you wish to discuss this matter in greater detail, please feel free to contact me by phone (714 – 446-1400) or by e-mail mjm@jones-mayer.com.