More State and Federal Laws and Precedents

CA Officials bound by State law, not Federal

All State officials must uphold The Compassionate Use Act regardless of whether or not it is said to conflict with federal law. Since no judicial challenge has been filed seeking to invalidate the law on the basis of a conflict with federal laws or regulations, or for any other reason, ALL California officials are legally obligated to uphold the Compassionate Use Act and failure to do so is a criminal act.

Constitution of the State of California, Amendment III, Section 3.5

"An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power:

(a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional;

(b) To declare a statute unconstitutional;

(c) To declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations. "

CA: only voters can modify an initiative statute

California Constitution Article 2 Section 10,

(a) An initiative statute or referendum approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise.

Furthermore, the Compassionate Use Act of 1996, because it is an initiative statute approved by a majority of votes, cannot be limited or restricted by anyone, including sheriffs, district attorneys, the attorney general or even the legislature, unless approved by the electors. Any attempt to do so is illegal.

California Constitution Article 2 Section 10:

(c) The Legislature. . . May amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.

CA: Supply of cannabis must be reasonable

"The rule should be that the quantity possessed by the patient or the primary care giver, and the form and manner in which it is possessed, should be reasonalby related to the patient's current medical needs." People v. Trippett, 56 Cal.App.4th at 1549

CA: Medical caregivers can be compensated

Excerpts from People v Peron:

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT DIVISION FIVE

(Filed: December 12, 1997)

The People ex rel DANIEL E. LUNGREN, as Attorney General, etc.,
Plaintiff/Appellant

v.

DENNIS PERON et al.,
Defendant/Respondent

A077630

"Although the sale and distribution of marijuana remain as criminal offenses under section 11360, bona fide primary caregivers for section 11362.5 patients should not be precluded from receiving bona fide reimbursement for their actual expense of cultivating and furnishing marijuana for the patient's approved medical treatment. This will 'ensure that seriously ill Californians have the right to obtain and use marijuana for the medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana…' (SS11362.5(b)(1)(A).)

For example, if a qualified patient is a semi-invalid and asks the primary caregiver to purchase fertilizer or special equipment to cultivate marijuana, merely reimbursing the caregiver for the purchase price thereof would be an adjunct to possession or cultivation under section 11362.5 and subject to the same affirmative defense. If the patient is incapacitated and thereby dependent upon the caregiver to cultivate or acquire the medicinal marijuana prescribed or approved for that patient's use, reimbursement for the caregiver's actual expenses in consistently doing so could be subject to the affirmative defense granted by section 11362.5.

As we have noted, the statute defines a primary caregiver as one "who has consistently assumed responsibility for the housing, health, or safety of (the patient). (SS11362.5(e), italics added.) Assuming responsibility for housing, health, or safety does not preclude the caregiver from charging the patient for those services. A primary caregiver who consistently grows and supplies physician-approved or -prescribed medicinal marijuana for a section 11362.5 patient is serving a health need of the patient, and may seek reimbursement for such services."

[p.18 -- (E) Miscellaneous Considerations]

State law enforcement not compelled to enforce federal law

Printz v. United States, 521 U.S. 898, 935 (1997)

-- Analysis by Judy Appel, Drug Policy Alliance

The federal government may not compel state law enforcement agents to enforce federal regulations. "[T]he Federal Government may neither issue directives requiring the States to address particular problems, nor command the State's officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." In Printz v. United States, 521 U.S. 898, 935 (1997), a Montana Sheriff Jay Printz challenged the constitutionality of a federal handgun control scheme that required him and other local law enforcement officers to conduct background checks on prospective handgun buyers, ensuring that no handguns were illegally purchased. In invalidating the law, the Supreme Court stated that Congress cannot require state officers to enforce federal laws. Asserting that it was discovered early on by the framers of the Constitution that "using the states as the instruments of federal governance was both ineffectual and provocative of federal-state conflict," the Court said that "the Constitution [] contemplates that a State's government will represent and remain accountable to its own citizens."

Federal: State officials can be sued for violating civil rights -- even if they do it under "color of law"

We have the right to due process under these sections of federal law:

42 USC 1983 deprivaton of Civil rights under color of law

42 USC 1985 (3) conspiracy to interfere with civil rights

42 USC 1986 Neglect to prevent conspiracy to interfere with civil rights

42 USC Sec. 1983 01/26/98 -- EXPCITE

TITLE 42 -- THE PUBLIC HEALTH AND WELFARE

CHAPTER 21 -- CIVIL RIGHTS

SUBCHAPTER I -- GENERAL

HEAD -- Sec. 1983. Civil action for deprivation of rights

STATUTE -- Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Federal RICO and conspiracy law:

Government agencies can be sued for conspiracy

"Enterprise" means any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity, or any unchartered union, association or group of individuals associated in fact although not a legal entity, and it includes illicit as well as licit enterprises, AND GOVERNMENTAL, as well as other, entities. -TN CODE 39-12-203, Organized Crime and Racketeer Influenced Organizations (RICO Act)

TITLE 18 > PART I > CHAPTER 109 > Sec. 2234.

Sec. 2234. - Authority exceeded in executing warrant

Whoever, in executing a search warrant, willfully exceeds his authority or exercises it with unnecessary severity, shall be fined under this title or imprisoned not more than one year

USC TITLE 18 > PART I > CHAPTER 109 > Sec. 2235. Prev | Next

Sec. 2235. - Search warrant procured maliciously

Whoever maliciously and without probable cause procures a search warrant to be issued and executed, shall be fined under this title or imprisoned not more than one year

Law enforcement officials can legally return marijuana to a bona fide medical marijuana patient

TITLE 21 > CHAPTER 13 > SUBCHAPTER I > Part E > Sec. 885. Prev | Next

Sec. 885. - Burden of proof; liabilities

(a) Exemptions and exceptions; presumption in simple possession offenses

(1) It shall not be necessary for the United States to negative any exemption or exception set forth in this subchapter in any complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this subchapter, and the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit.

(2) In the case of a person charged under section 844(a) of this title with the possession of a controlled substance, any label identifying such substance for purposes of section 353(b)(2) of this title shall be admissible in evidence and shall be prima facie evidence that such substance was obtained pursuant to a valid prescription from a practitioner while acting in the course of his professional practice.

(b) Registration and order forms

In the absence of proof that a person is the duly authorized holder of an appropriate registration or order form issued under this subchapter, he shall be presumed not to be the holder of such registration or form, and the burden of going forward with the evidence with respect to such registration or form shall be upon him.

(c) Use of vehicles, vessels, and aircraft

The burden of going forward with the evidence to establish that a vehicle, vessel, or aircraft used in connection with controlled substances in schedule I was used in accordance with the provisions of this subchapter shall be on the persons engaged in such use.

(d) Immunity of Federal, State, local and other officials

Except as provided in section 2234 and 2235 of title 18, no civil or criminal liability shall be imposed by virtue of this subchapter upon any duly authorized Federal officer lawfully engaged in the enforcement of this subchapter, or upon any duly authorized officer of any State, territory, political subdivision thereof, the District of Columbia, or any possession of the United States, who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances

Oregon Appeals Court upholds police responsibility to return med marijuana to a patient

STATE OF OREGON, Plaintiff, and
CITY OF PORTLAND, Appellant,
v.
SAMUEL KIM KAMA, Respondent.

A109667

COURT OF APPEALS OF OREGON,
178 Ore. App. 561; 39 P.3d 866; 2002 Ore. App. LEXIS 10

June 18, 2001, Argued and Submitted. January 9, 2002, Filed.

PRIOR HISTORY: [***1] 9906-34218. Appeal from Circuit Court, Multnomah County. Robert W. Redding, Judge.

DISPOSITION: Affirmed.

COUNSEL: David Lesh argued the cause and filed the brief for appellant. Richard White argued the cause and filed the brief for respondent.

JUDGES: Before Landau, Presiding Judge, and Deits, Chief Judge, * and Brewer, Judge.

* Deits, C. J., vice Warren, S. J.

OPINION BY: LANDAU

OPINION: [*563] [**867] LANDAU, P. J.

The City of Portland (city) appeals a judgment that, among other things, orders it to return to defendant a small amount of marijuana that he is entitled to possess under the Oregon Medical Marijuana Act, ORS 475.300 et seq. According to the city, the return of the marijuana to defendant would constitute delivery of a controlled substance in violation of federal law. We affirm.

The relevant facts are undisputed. Portland police officers executed a search warrant at the residence of Richard LeBus and Maria Jackson. Defendant drove up as the officers were searching the residence. The officers searched him and found in his possession a tin containing a small amount of marijuana. Defendant has a medical condition that qualifies him for the lawful medical use [***2] of marijuana under ORS 475.306.

The state charged LeBus, Jackson, and defendant with possession, manufacture, and delivery of a controlled substance, but it later dismissed all charges against defendant. Meanwhile, defendant moved for the return of his property, that is, his marijuana. The city opposed the motion, arguing that, because marijuana is a Schedule I controlled substance, 21 USC ß 812, to return the marijuana to defendant would require the city to commit the federal crime of delivering a controlled substance, 21 USC ß 841(a). The trial court allowed defendant's motion and ordered the return of the marijuana.

On appeal, the city reiterates its argument that, because marijuana is a Schedule I controlled substance, it cannot be ordered to return defendant's marijuana without causing it to violate federal law. Defendant argues that the federal crime of distribution of a controlled substance does not include the conveyance of a controlled substance in the course of an officer's otherwise lawful duties; otherwise, he observes, law enforcement personnel could not so much as deliver marijuana to a city property [***3] locker without violating federal law. Moreover, defendant observes, federal law expressly makes law enforcement personnel immune from any civil or criminal liability arising out of their handling of [*564] controlled substances as part of their official duties. Because we agree with the latter point, and it is dispositive, we need not address the former.

ORS 475.309 provides that a person who demonstrates that he or she has been diagnosed with a debilitating medical condition and that medical use of marijuana may mitigate the symptoms or effects of the condition can obtain a "registry identification card." Persons who possess such a card may engage in the medical use of marijuana to mitigate the symptoms or effects of their debilitating medical condition. ORS 475.306. Any usable marijuana and related paraphernalia that law enforcement personnel have seized from a person who possesses a registry identification card must be: "returned immediately upon a determination by the district attorney in whose county the property was seized, or his or her designee, that the person from whom the marijuana or paraphernalia used to administer [***4] marijuana was seized is entitled to the protections contained in ORS 475.300 to 475.346. Such determination may be [**868] evidenced, for example, [by] a decision not to prosecute, the dismissal of charges, or acquittal." ORS 475.323(2).

The federal Controlled Substances Act confers immunity on all state and federal law enforcement officers engaged in the enforcement of the Act or of any state or municipal law relating to controlled substances:

"No civil or criminal liability shall be imposed by virtue of this subchapter upon any duly authorized Federal officer lawfully engaged in the enforcement of this subchapter, or upon any duly authorized officer of any State, territory, political subdivision thereof, the District of Columbia, or any possession of the United States, who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances."

21 USC ß 885(d). Thus, for example, the statute confers immunity on law enforcement personnel engaged in undercover drug operations. See, e.g., U.S. v. Fuller, 162 F.3d 256 (4th Cir 1998). [***5] [*565]

In this case, there is no debate that defendant is entitled to possession of the marijuana under ORS 475.323(2). Even assuming that returning the marijuana otherwise might constitute delivery of a controlled substance, the city does not explain--and we do not understand--why police officers would not be immune from any federal criminal liability that otherwise might arise from doing so.

Affirmed.

Medical Marijuana Programs in Other States

Legal Possession Amounts (Last updated 8/25/03)

 

Alaska

Patients (or their primary caregivers) may legally possess no more than one ounce of usable marijuana, and may cultivate no more than six marijuana plants, of which no more than three may be mature.

 

California

No specific limits for qualified patients and caregivers. Courts have held that it allows any personal use amount that is reasonably related to the patient's medical consumption. Various localities have adopted county or municipal guidelines. See the Safe Access Now website for more information.

 

Colorado

Patients (or their primary caregivers) may legally possess no more than one ounce of usable marijuana, and may cultivate no more than seven marijuana plants. This is modeled after Oregon's program

 

Hawaii

Patients (or their primary caregivers) may legally possess no more than one ounce of usable marijuana, and may cultivate no more than seven marijuana plants, of which no more than three may be mature. This is modeled after Oregon's program.

 

Maine

Patients (or their primary caregivers) may legally possess no more than two and one-half ounces of usable marijuana, and may cultivate no more than six marijuana plants, of which no more than three may be mature. Those patients who possess greater amounts of marijuana than allowed by law are afforded a "simple defense" to a charge of marijuana possession.

 

Nevada

Patients (or their primary caregivers) may legally possess no more than one ounce of usable marijuana, and may cultivate no more than seven marijuana plants, of which no more than three may be mature. Modeled after Oregon's program.

 

Oregon

Patients (or their primary caregivers) may legally possess no more than seven plants &endash; 3 mature and 4 immature. Plants can be grown at a private location only if the user lives at that location. User can possess no more than 1 ounce of usable marijuana.

 

subpoena

Columbia Encyclopedia, Sixth Edition. 2001.Copyright © 2003 Columbia University Press.

(sp´n) (KEY)  [Lat.,=under penalty], in law, an order to a witness to appear before a court. A subpoena ad testificandum [Lat.,= to testify under penalty], the technical term denoting an ordinary subpoena, is a command for an individual to appear at a particular time and place to testify on a specific matter. A subpoena duces tecum [Lat.,=bring with you under penalty] requires a witness to produce at trial books, personal papers, or other material relevant to a judicial proceeding. Failure to obey a subpoena constitutes contempt of court, though subpoenas can be challenged.