Circuit Won't Get in the Way of CA Medical Pot Crackdown

     SAN FRANCISCO (CN) - The U.S. government can continue shutting down medical marijuana dispensaries that operate legally under California law, the 9th Circuit ruled.
     Federal prohibitions on marijuana use allow the government to prosecute businesses that sell medical marijuana, and a government memorandum saying some medical marijuana users would be a low priority for prosecution is immaterial, the San Francisco-based court concluded.
     El Camino Wellness Center, which is the operating name of Sacramento Nonprofit Collective, sued Attorney General Eric Holder in November 2011 after a crackdown on medical marijuana dispensaries.
     The dispensary claimed the "four US Attorneys for California have threatened to use all means necessary to shut down the supply chain of medical cannabis for patients."
     A federal judge dismissed the suit in March 2012, citing precedent that showed the government does not overstep its authority under the commerce clause when it goes after businesses that sell medical marijuana, even in ways that are legal under state law.
     The dispensary appealed the ruling, as did San Diego's Alternative Community Healthcare Cooperative, which operates as Cloud 9 Cooperative, and other dispensaries and patients caught up in the crackdown when their federal lawsuits were dismissed.
     The appeals court on Wednesday rejected the dispensaries' argument that federal enforcement of the Controlled Substances Act violates the equal protection clause of the Constitution.
     A 2012 decision in the case James v. City of Costa Mesa is particularly relevant, the panel found, quoting that "[l]ocal decriminalization notwithstanding, the unambiguous federal prohibitions on medical marijuana use set forth in the CSA continue to apply in [all] jurisdictions." (Emphasis in original.)
     Nor can the dispensaries rely on the so-called Ogden memo to stop the seizures, according to the ruling. The Justice Department memorandum said "certain marijuana users and providers would be a lower priority for prosecution than others," citing individuals with cancer as one example.
     El Camino Wellness Center and patient Ryan Landers had tried to argue that they relied on the memorandum in thinking they would not be prosecuted for operating medical marijuana dispensaries that followed state law.
     But, according to the Ninth Circuit ruling, "the appellants over-read the statements made in both the Ogden Memorandum and during the course of prior litigation; at no point did the Government promise not to enforce the CSA. Appellants therefore identify no clear inconsistency between the Government's current and prior positions as is required to invoke the doctrine of judicial estoppel."
     El Camino Wellness Center is represented by Matthew Kumin of Kumin Sommers LLP in San Francisco.
     Kumin did not immediately reply to a request for comment from Courthouse News but reportedly has plans for a rehearing before a larger panel that could overturn precedent.
     "When you're climbing a mountain and you're excited about getting to the top, you're still going to get snowstorms," Kumin told the San Francisco Chronicle. "It's like other civil rights movements. ... We'll get there eventually."
     Varu Chilakamarri from the Department of Justice defended the federal government in the suit brought by El Camino Wellness.
     U.S. Attorney Benjamin Wagner in Sacramento called the ruling "a straightforward application of existing precedent, which merely confirms that the CSA continues to be in full force and effect, regardless of state law."