The Madeleine Brand Show for November 8, 2011

Medical marijuana advocates say pot crackdown is unconstitutional

Medical Marijuana

Kevork Djansezian/Getty Images

File photo: Jars full of medical marijuana are seen at Sunset Junction medical marijuana dispensary on May 11, 2010 in Los Angeles, Calif. Pot advocates have filed multiple lawsuits against the federal government's crackdown on pot shops.

Medical marijuana advocates are seeking a temporary restraining order against the federal crackdown on California pot dispensaries, claiming that the effort led by the state’s four U.S. attorneys is unconstitutional.

In the past month, drug agents have begun raiding the cannabis enterprises. Pressure from the federal government is threatening an effort to regulate marijuana production in Mendocino County.

Matt Cohen distributes his county-inspected marijuana through a cooperative to patients with doctor’s recommendations. On Oct. 13, heavily armed Drug Enforcement Agents stormed onto the unsuspecting pot farmer’s property.

"We were just getting ready to start harvesting," he told Michael Montgomery of the California Report. "They were getting ready to knock the door in with one of those sledges. I opened the door and they grabbed me, cuffed me, slammed me up against the wall — they all had submachine guns."

Federal prosecutors also sent letters to landlords who rent space to pot shops, threatening to seize their property under federal drug trafficking laws.

Plaintiffs asked U.S. District Court Judge Donna Ryu in Oakland to issue an order barring the government from arresting or prosecuting patients, dispensary owners or landlords of properties housing dispensaries.

Lawsuits filed starting Friday in all four of California's federal court jurisdictions accuse the Department of Justice of entrapping pot providers by reversing its own policy, among other legal issues.

Plaintiffs' attorneys cited a Santa Cruz County medical marijuana cooperative's agreement with federal prosecutors to dismiss its case against the government because the department issued a memo telling U.S. attorneys to defer to states on medical use of the drug.

The lawsuits claim that by introducing the Justice Department's so-called Medical Marijuana Guidance memo as part of that case, prosecutors were essentially laying out their policy on medical marijuana. "They locked themselves in," said San Francisco attorney Matt Kumin, lead attorney on the suits.

Based on the memo issued in 2009, other medical marijuana providers in the state could reasonably assume they would no longer face federal prosecution, the suits argue.

"The conduct of the government officials and their statement led the nation to believe that the government had changed its policy in 2009, ensuring that those who comply with state medical cannabis laws would not be subject to federal prosecution," according to the suits.

The U.S. Attorney's Office for the Northern District of California had no comment, spokesman Jack Gillund said.

Pot advocates hailed the 2009 memo as the fulfillment of an Obama campaign promise to respect state law on medical marijuana. But after a short honeymoon the federal government has steadily moved toward more restrictive marijuana policies, even as more states began permitting legal use of the drug for medical purposes.

The California lawsuits argue that the federal government is also violating the 14th Amendment of the Constitution requiring equal protection under the law because medical marijuana operations in Colorado are not facing a similar crackdown.

The suits claim patients' rights to make their own health decisions are protected by the 9th Amendment, which retains rights for citizens not explicitly spelled out in the Constitution, and that the so-called Commerce Clause of the Constitution prevented the federal government from getting involved in an issue purely related to the in-state marijuana trade.

The Associated Press contributed to this report.


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