NINTH CIRCUIT: MEDICAL MARIJUANA USE CONSTITUES “ILLEGAL DRUG USE” UNDER THE AMERICANS WITH DISABILITIES ACT
Recently, Jones & Mayer were successful in urging the Ninth Circuit Court of Appeals to affirm the denial of a preliminary injunction against the enforcement of the City of Costa Mesa’s prohibition of medical marijuana dispensaries. On May 21, 2012, the Ninth Circuit held, in James v. City of Costa Mesa (James I),[1] that doctor-recommended medical marijuana use under State law, but which is prohibited by Federal law, constitutes an illegal use of drugs for purposes of the Federal Americans with Disabilities Act (ADA), thus not entitling medical marijuana users to the protections of the ADA as to such drug use.
Facts
The plaintiffs in James I claim that they are severely disabled individuals who use medical marijuana because, as they alleged, conventional medicine and prescription drugs have not alleviated their pain. The plaintiffs obtained their marijuana from dispensaries in the cities of Costa Mesa and Lake Forest. Both cities took steps to shut down their dispensaries, and plaintiffs brought an action in the Federal District Court, alleging that the cities’ actions violate Title II of the ADA. The plaintiffs specifically asked the court to intervene to stop the cities’ enforcement activities against the dispensaries from which they obtained their marijuana.
The Ninth Circuit Court of Appeals’ Decision in James I
The ADA prohibits public entities from denying the benefit of public services to any “qualified individual with a disability.”[2] However, an “’individual with a disability’ does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.”[3] The “Illegal use of drugs” is defined in the ADA as the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act (21 U.S.C. 812). Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law. [4]
The Court had to decide if the plaintiffs’ use of medical marijuana constitutes an “illegal use of drugs,” or if it falls under the exception in the second sentence – namely, whether plaintiffs’ use of medical marijuana constitutes “a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law.”
The Court of Appeals’ opinion had two parts. In the first part, the Court considered whether use of medical marijuana pursuant to a doctor’s recommendation under State law constitutes “the use of a drug taken under supervision by a licensed health care professional” and the intended scope of this exception. In light of the text of the Controlled Substances Act (CSA) and the “strong and longstanding” federal policy against marijuana for medical use, the Court concluded that “doctor-supervised marijuana use is an illegal use of drugs not covered by the ADA’s supervised use exception.”
In the second part of the opinion, the Court considered whether medical marijuana use constitutes drug use “authorized by … other provisions of Federal law.” Plaintiffs pointed out that Congress had recently removed a long-standing legislative provision by the U.S. Congress that had stood in the way of a D.C. initiative taking effect, which decriminalized marijuana for medical purposes in the District of Columbia. Plaintiffs argued that this created a defense to Federal CSA prosecution, a defense that should also be applied to qualified patients in California who use marijuana medically. The Ninth Circuit rejected this argument also, and concluded that local D.C. law decriminalizing marijuana for medical use in no way affects the applicability of the CSA in D.C. or California.
The plaintiffs have indicated that they intend to seek review of the James I decision by an en banc panel of the Ninth Circuit.
The District Court’s Ruling in James II
While the James I case was pending, Federal authorities had begun taking direct action against dispensaries in both cities, including cease and desist letters and/or civil forfeiture proceedings under Federal Law. Prior to the Ninth Circuit’s decision, Marla James and two other plaintiffs filed a second action, this time against the United States and U.S. Attorney General Eric Holder, as well as the cities of Costa Mesa and Lake Forest (James II). The plaintiffs sought to obtain a temporary restraining order and preliminary injunction to prevent the Federal government from ordering the closure of medical marijuana dispensaries in Costa Mesa and Lake Forest.
In James II, plaintiffs argued that the United States’ actions violate their equal protection and due process rights, and constitute violations of the ADA. Immediately following the Ninth Circuit’s decision in James I, the District Court denied plaintiffs’ request for a preliminary injunction in James II and found no constitutional violations. On the issue of D.C.’s initiative decriminalizing marijuana for medical use, which the plaintiffs raised again in James II, the District Court concluded that the residents of
D.C. are now in the same position as the residents of California – both local jurisdictions have differing laws from the CSA regarding marijuana, and that residents of both would not be excused by such laws “from any violation of the federal law governing marijuana” and such laws would not “authorize any [person] to violate federal laws.” Further, based on theJames I decision, the James II court found no violations of the ADA.
HOW THIS AFFECTS YOUR AGENCY
Thus far, the Federal courts, at both the District Court and Ninth Circuit Court of Appeals levels, have been unwilling to recognize ADA rights as to medical marijuana patients. For now, the status quo remains: any possession, cultivation or distribution of marijuana for any purpose is illegal under Federal law, irrespective of compliance with California law. This means that, for now, law enforcement and other governmental agencies need not treat medical marijuana patients or dispensaries differently under the ADA. However, it is clear that these plaintiffs will exercise all of their appellate rights, so this matter will not be fully concluded until those rights have been exhausted. We will continue to keep you updated as these cases progress. As always, we recommend that you consult with legal counsel on specific questions regarding your agency and jurisdiction.
As in all matters involving the interpretation and/or application of the law, it is important to seek out advice and guidance from your agency’s attorney. If you wish to discuss this case in greater detail, please don’t hesitate to contact me at (714) 446 – 1400 or via email at eqg@jones-mayer.com.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship.
[1] James et al. v. City of Costa Mesa et al., 2012 U.S. App. LEXIS 10168, *1 (9th Cir., May 21, 2012). The plaintiffs in this case were four individuals: Marla James, Wayne Washington, James Armantrout and Charles Daniel Dejong. They filed suit against the cities of Costa Mesa and Lake Forest. Jones & Mayer is the City Attorney for the City of Costa Mesa. The City of Lake Forest was separately represented.
[2] 42 U.S.C. § 12132.
[3] 42 U.S.C. § 12210(a).
[4] 42 U.S.C. § 13310(d).