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Reinforcing the people's will; Garden Grove's appeal of court order to return medical marijuana fails, again

Garden Grove, CA

It is more than a little puzzling that the city of Garden Grove wasted $80,000 of the taxpayers' money in an effort that anybody who had studied the relevant law could have told officials was a doomed attempt to skirt California's medical marijuana law by getting legal authorization to enforce federal marijuana law instead of state law. A possible bright side, however, is that this extended court battle has eliminated anything remotely resembling a legal justification for law enforcement and cities to continue dragging their feet when it comes to proper implementation of California's law.

The facts of the case: In 2005 Felix Kha was pulled over on a routine traffic stop (illegal right turn), and it was discovered that he had a third of an ounce of marijuana. Although he showed police a valid letter from a physician authorizing him to use marijuana medicinally, the police confiscated his medicine and cited him for marijuana possession. The District Attorney's Office declined to pursue the case and after a hearing the Orange County Superior Court ordered Kha's property returned to him.

When he went to the police property room with his court order, the police refused to return his medicine.

The city government of Garden Grove backed up its Police Department and appealed the court order, eventually backed by the California Police Chiefs Association, the California Peace Officers Association and several city governments, including Huntington Beach.

The California Fourth District Court of Appeal rejected the suit, and Garden Grove appealed to the California Supreme Court, which declined to hear the case. So the city appealed to the U.S. Supreme Court, which last week also declined to take the case.

This outcome was entirely predictable. The California constitution says that local police are to enforce state law rather than federal law when there is an apparent conflict, unless a federal district court has issued a ruling saying that California law is superseded by federal law.

After voters passed the Compassionate Use Act -- way back in 1996 -- nobody tried an appeal to get such a ruling, undoubtedly because lawyers told officials it would fail. More recently San Diego County tried such an appeal, and it was firmly rejected earlier this year by California and federal courts.

Still, some local police departments have dragged their feet on proper implementation of the medical marijuana laws. Some police officials claim to believe that returning medical marijuana to a patient would put them in violation of federal marijuana trafficking laws.

As the California appeals court explained in its comprehensive ruling, however, not only are police officers immunized when they work undercover, but when a court issues an order to return medicine the police are simply instruments of the court with a duty to perform, and therefore have no legal liability.

The Supreme Court rejects most petitions without explanation, so it is unclear whether this action has national implications. You can be sure, however, that if the high court had been inclined to entertain Garden Grove's argument regarding federal supremacy, it would have taken the case.

Whatever the national implications, the implication in California is clear. As all the relevant courts and California Attorney General Jerry Brown have declared, police are not to seize marijuana from valid patients unless there is evidence of illicit trafficking, and are to return it if there is no prosecution.

The red herring about putting police in violation of federal law has no validity. State and local law enforcement officers are sworn to uphold California law, not try to skirt it by claiming they have an obligation to enforce federal law.

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