CSSA Magazine Article- Medical Marijuana: Law Enforcement’s “Rock and a Hard Place”


January, 2007

By:  Martin J. Mayer

Approximately ten years ago, California voters approved Proposition 215 which, in essence, provides a defense to criminal prosecution for possession of marijuana when used for medical purposes.  The proposition was subsequently codified as the “Compassionate Use Act” which allows “seriously ill” people in California to use marijuana  for medical purposes.  Unfortunately, the federal law, pursuant to the “Controlled Substances Act,” 21 U.S.C. Section 801, et seq. prohibits the possession, use, or transfer of marijuana unless specifically authorized under the Act.  Congress has also concluded that marijuana has no valid medical purpose and is illegal under all circumstances.

Additionally the United States Supreme Court ruled, in the case of Gonzales v. Raich, 125 S.Ct. 2195 (2005) that Congress has the constitutional power to prohibit medical marijuana and has, in fact, prohibited it by including it as a Schedule I drug under the Controlled Substances Act (CSA).  The CSA makes it unlawful to manufacture, distribute, dispense or possess marijuana in the same way it regulates cocaine, methamphetamine, or heroin.

California Attorney General Bill Lockyer has opined that Proposition 215 was not adversely affected by the decision in Gonzales v. Raich, and that California should continue to comply with its own state law, despite the fact that it is contrary to federal law.  That conflict creates a “rock and a hard place” for California law enforcement. There are numerous jurisdictions throughout the state of California which have issued business permits to, and have permitted, by zone regulations, the establishment of, medical marijuana dispensaries.  Such dispensaries, which are commercial enterprises, are not authorized under Proposition 215, nor under the enabling legislation,  the Compassionate Use Act.  Additionally, those dispensaries violate the prohibitions set forth in the Controlled Substances Act. Those actions put law enforcement “between a rock and a hard place.”

Pursuant to the Supremacy Clause of the U.S. Constitution, a state law which conflicts with a federal law is invalid unless the federal law exceeded congressional authority.  In the instant case, the U.S. Supreme Court has ruled that Congress did not exceed its authority and, therefore, the federal prohibition on the use or possession of medical marijuana “trumps” the state law.

It is interesting to note that after the Supreme Court’s decision in the Raich case, the matter was presented to Congress for consideration.  Specifically, an effort was undertaken to have Congress prevent the federal Department of Justice from criminally prosecuting individuals for possession, in the ten states which have enacted similar legislation permitting the medical use of marijuana.  By a vote of 264 to 161, Congress rejected such an amendment to the CSA, stating that such an action would undercut efforts to combat marijuana abuse. Whether one agrees or disagrees with the Congressional action, such action creates a “rock and a hard place” for law enforcement.

Recently, this office represented the City of Pismo Beach in a lawsuit filed in federal court (Pismo Beach vs. Sefton), challenging an order from a superior court judge directing the Pismo Beach police department to return marijuana to an individual whose prosecution was dismissed pursuant to Proposition 215.  It was our argument to the federal court that such an order is illegal and unenforceable since it requires a peace officer to commit a crime, namely, dispensing marijuana to an individual not authorized under federal law.

Despite expressions of understanding and empathy, the federal court granted the  motion by the California Attorney General to dismiss the Pismo Beach lawsuit, stating it was not yet “ripe” for adjudication in the federal courts. Since the City was unable to prove that, either the superior court judge would hold our officer in contempt if we refuse to return the marijuana, or that the federal government would criminally prosecute the officer if the marijuana was returned, no violation of federal law had yet occurred.

The City of Garden Grove also, recently, initiated litigation against a superior court judge arising out of the same type of situation which confronted Pismo Beach.  The Garden Grove case is moving forward in the state court rather than the federal court and, hopefully, will not run into the technical and procedural barriers raised in the Pismo Beach case.  Jones & Mayer will be filing an amicus curiae brief on behalf of the California State Sheriff’s Association, supporting the City of Garden Grove in its efforts to have a court declare that a state court judge cannot require a peace officer to commit a felony.

At the same time, there is additional litigation challenging the constitutionality of Proposition 215 itself.  The counties of San Diego, San Bernardino and Merced have joined together and sued the State of California, arguing that the state mandate imposed upon counties to issue medical marijuana identification cards, and to draft a policy regarding the distribution of such marijuana, violates federal law and,  therefore, is unconstitutional.  Those cases are moving forward and hopefully will be concluded in the not too distant future.

Once again, the impact upon law enforcement is to place it in the untenable position of being “between a rock and a hard place.”  If the officer obeys the state superior court judge’s order to return  marijuana, he or she must, by definition, violate federal law.  If, on the other hand, the officer chooses to obey federal law (since the officer has taken an oath to uphold both the California and United States Constitutions), and not return the drug, the officer runs the risk of being held in contempt of court for failing to comply with the judge’s order. That conflict is another example of how law enforcement is found “between a rock and a hard place.”

The amount of litigation that is ongoing, the very strong opposition by the California Office of the Attorney General, and the emotional aspects involved in these matters, all create great difficulties in attempts to have a judicial resolution to the conflict between California’s law and the law of the United States of America.

Martin J. Mayer has served as General Counsel to the California State Sheriffs’  Association for approximately twenty-five years.  The firm of Jones & Mayer, located in Fullerton, California, is a public sector law firm which focuses its attention on representing the interests of law enforcement in cities and counties throughout the State of California.

If you wish to discuss this issue in greater detail, please do not hesitate to contact me at 714 – 446-1400 or at mjm@jones-mayer.com.