Medical Marijuana, No Longer Defenseless


A federal judge in California for the first time is allowing medical use under state law as a defense in a federal criminal pot trial. An excerpt from the Associated Press report:

Defense lawyers wanted the charges dismissed based on the appellate court's ruling, but [Judge Nora] Manella ruled that the government had enough evidence the couple may have been growing their marijuana for a "commercial operation," allowing the case to go to trial.

But she warned Assistant U.S. Attorney Thomas Loeser that if the government can't show the couple was growing the marijuana with the intent to distribute it, it will likely have a weak case.

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  1. Yee, haa.

    At last a Federal Judge with some balls.

    A woman Judge? Even better.

  2. I once heard of a pro-medical MJ sticker that said “States Rights: Not Just For Racists Anymore” 🙂

  3. This is the first trial to allow that defense, but the earlier Ninth Circuit case that this ruling was based on is ther really interesting one.

    Randy Barnett was involved in a medical marijuana case and won at the Ninth Circuit. Actually, that holding was even better than this one. It was based exclusively on the commerce clause. It had nothing to do with the medicinal nature of the marijuana use. The court just said that the federal government had no constitutional authority to regulate marijuana transactions. That holding could probably be used to invalidate all federal drug laws.

  4. This is an excellent decision and nice to have a judge putting the earlier ruling “into play.” We still need to get the Truth in Trials act passed, though.

    Xavier, I loved the commerce clause decision, although that particular case involved totally home grown cooperative, no selling, and for medicinal purposes in a state where medical marijuana was legal (perfect case to take a stab at the commerce clause abuses). It would take quite a bit more to invalidate all federal drug laws — the commerce clause has been weakened beyond belief since the days of the first prohibition. They had to pass a constitutional amendment to outlaw alcohol because of the commerce clause. I’d love to see us at least starting on a road back toward that general direction. (not outlawing alcohol, but actually having the commerce clause mean something).

    Another area where we have to resist is joint federal/state/local drug task forces, where they use the existence of different personnel on the task force as justification for moving a case into the jurisdiction that’s convenient. Completely blurs the federalism line and tends to put local cops under feds rather than under their community.

  5. There were two cases in the Ninth Circuit. The first did was about homegrown marijuana, but the second was about sold marijuana. Since the holding relied on commerce clause restrictions, the medicinal aspect is logically irrelevant. I don’t see how the state allowing medical use is relevant either in a federal case.

    BTW, I haven’t read either case. I’m basing this exclusively on what Barnett said. But since he was there, he seems like a pretty reliable source.

  6. On the federalism angle…

    If different states have different laws about different substances, would it be appropriate (on the issue of federalism, not drug policy) for the feds to have laws against “crossing state lines to violate state drug laws” or “operating an interstate criminal organization?”

  7. The state law prohibiting drugs also prohibits crossing into that state with drugs even from another state, regardless of its legal status in the other state.

    I use CA and NV as examples because I live in NV.

    Let’s say MJ is legal in NV, but not CA. Why does there need to be a federal law concerning transporting MJ across state lines? It’s CA’s problem, they have the prohibition, let them enforce their own laws.

    This concept also applies to criminal organizations. If a Nevada organization decides to being “exporting” MJ to CA contrary to CA’s laws, that’s CA’s problem. CA is free to lobby NV to outlaw the exporting of MJ to states where its illegal.

    As a parallel I don’t see any federal law prohibiting the transport of radar detectors into states where they are illegal.

    When you say “crossing state lines to violate state drug laws”, I’m not sure what you mean.
    I assume you’re not talking about people who leave CA to go to NV and toke legally the way some people go to Holland. There have been bills proposed like this regarding people under 18 crossing state lines to get an abortion.

  8. “Why does there need to be a federal law concerning transporting MJ across state lines?”

    Because criminal organizations of national scope are exceedingly hard for state police to property investigate. Imported in one state, moved to another through a third, then distributed across four states…

    Think, for example, of gambling. It is legal in Nevada, but the FBI still operates against mafia bookies across the nation, including when part of their operation is in Nevada.

  9. Pete Guither,
    After reading your post I have a couplel of questions:
    1)What is the truth in trials act? I would like to see a “truth in the name of the law act”. I was given a reckless driving ticket in VA, for driving 82 (anything over 80 is considered reckless) everyone else on the freeway was doing 79, because they knew of the law.

    2)Does the commerse law you talk about affect concealed weapons permits? So that if you have a concealed weapons permit from one state you can carry in another?

  10. Brendan, a simple solution for CA is to aerial spray roundup on Nevada. Call it Plan Nevada and throw a few billion at it until the pot stops crossing over into Callie. While the great eye of saru…er, California is focused on Nevada, Humbolt will become the world’s supplier of fine green bud. Just like in the real world. 😉

  11. Ugh. I say, “what’s the big deal”…with regards to Pot in general. Alcohol is far more dangerous, and look how well prohibition worked. If only the government (fed & state & local) would just treat weed like booze in terms of legality…

  12. Ugh. I say, “what’s the big deal”…with regards to Pot in general. Alcohol is far more dangerous, and look how well prohibition worked. If only the government (fed & state & local) would just treat weed like booze in terms of legality…

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