OFF THE WIRE
By CHRIS MARSHALL
SAN FRANCISCO (CN) - A medical marijuana advocacy group sued the federal government for threatening property owners with forfeiture and criminal prosecution if they rent to medical marijuana providers. They say the federal government has no right to "coerce and commandeer the police power and legislative and executive functions of the state of California."
Americans for Safe Access accuses Attorney General Eric Holder and local U.S. Attorney Melinda Haag of usurping California's right to make and enforce state laws.
Haag and the three other U.S. attorneys for California held a press conference on Oct. 7 at which they said they would send mass mailings to property owners threatening civil forfeiture and severe criminal punishment if the owners rent to medical marijuana dispensaries, even those that operate legally under state law.
The U.S. attorneys also promised to raid and prosecute medical marijuana providers, again not making exceptions for those operating legally under state law.
Americans for Safe Access says one of the U.S. attorney even threatened newspapers that carry ads for state-allowed dispensaries with criminal punishment for such ads, which are protected by the First Amendment.
Americans for Safe Access says the government is entitled to enforce criminal laws against marijuana in states that have decriminalized it for medical use in an "even-handed manner," but that "the Tenth Amendment forbids it from selectively employing such coercive tactics to commandeer the law-making functions of the state."
The group says it does not challenge Congress' authority to enact laws criminalizing the possession or control of marijuana across the country or in California. But it takes issue with the "government's tactics, and the unlawful assault on state sovereignty they represent."
It says the federal government may not commandeer the law-making functions of a state or its subdivisions directly or indirectly through the "selective enforcement of its drug laws."
The group says the federal government has "vigorously opposed" state efforts to legalize medical marijuana, has tried to persuade local and state officials to arrest and prosecute medical marijuana patients, and failing that, has tried to coerce states into criminalizing all marijuana use.
The federal government threatened criminal prosecution and revocation of the license needed to receive reimbursement from Medicare and Medicaid for any doctor who recommended medical marijuana to a patient, until it was enjoined from doing so by a federal court, which was affirmed in Conant v. Walters.
Despite that injunction, the federal government has continued to target health care professionals with the intent of rendering medical marijuana laws inoperable, the complaint says.
In 2007 the Department of Justice obtained a federal grand jury subpoena against Oregon's Health Services Department, its Medical Marijuana Program, and a medical clinic in Portland, seeking intimate medical information about medical marijuana patients in the state.
The Eastern District of Washington quashed the subpoena, Americans for Safe Access says.
When those attempts failed, the federal government decided to selectively target medical marijuana patients and providers for federal prosecution with "draconian penalties," the complaint states.
In 2002 Asa Hutchinson, administrator for the Drug Enforcement Administration, publicly confirmed that the raids and prosecutions were part of a "federal commitment to sabotage and render unenforceable California's medical marijuana laws."
Hutchinson later repeated that it was federal policy to "disrupt implementation of California's medical marijuana laws" in a letter to California's then-Attorney General Bill Lockyer, according to the complaint.
California voters approved Proposition 215, the Compassionate Use Act, on Nov. 4, 1996. It allows patients with a doctor's recommendation to possess and cultivate marijuana for personal medical use.
Americans for Safe Access is a nonprofit based in Oakland, which claims membership of 20,000 medical marijuana patients in California. Its primary purpose is to "protect the rights of patients to use marijuana for medical use, including assisting California localities to consider and adopt reasonable regulations under state law over the provision of medical marijuana to the seriously ill."
It wants the federal government and its creatures enjoined from "seeking to coerce and commandeer the police power and legislative and executive functions of the state of California and its political subdivisions in regard to the implementation of the state's medical marijuana laws."
Americans for Safe Access is represented by Joseph Elford.