Tide of Dismissals May Await Marijuana Cases

     SACRAMENTO, Calif. (CN) – The U.S. government can shut down California medical marijuana dispensaries operating legally under state law, a federal judge ruled, dismissing the first of many lawsuits filed in the wake of a statewide crackdown.



     Precedent shows that the government does not overstep its authority under the commerce clause when it goes after businesses and companies that sell medical marijuana, U.S. District Judge Garland Burrell said, even in ways that are legal under state law.
     El Camino Wellness Center, which is the operating name of Sacramento Nonprofit Collective, sued Attorney General Eric Holder in November of last year after a recent crackdown on medical marijuana dispensaries, including those abiding by state law.
     The suit claims the “four US Attorneys for California have threatened to use all means necessary to shut down the supply chain of medical cannabis for patients.”
     Similar lawsuits proliferated in the Northern, Central and Southern Districts of California. This Eastern District ruling is the first dismissal of any of those cases.
     Dispensaries do not have a claim for judicial estoppel because the government’s position with regard to prosecuting medical marijuana providers is not clearly inconsistent with its earlier position, Burrell said.
     The center and one of its patients, Ryan Landers, had tried to argue that they relied on a Justice Department memorandum, referred to as the Ogden Memo, that said “certain marijuana users and providers would be a lower priority for prosecution than others,” citing individuals with cancer as one example, in thinking they would not be prosecuted for operating medical marijuana dispensaries that followed state law.
     But the government countered that the plaintiffs were “simply incorrect in asserting that the department has ever issued a promise or guarantee in any prior judicial proceeding that the CSA (Controlled Substances Act) would never be enforced against marijuana distributors or their landlords simply because they claim to comply with state law.”
     Burrell found that the government’s enforcement of the CSA “is not inconsistent with the enforcement policy stated in the Ogden Memo.”
     “Since the power to regulate the intrastate possession, manufacturing and distribution of marijuana ‘is delegated to Congress’ through the commerce clause … plaintiffs’ allegation that the power to regulate marijuana in California was reserved to California through the Tenth Amendment is foreclosed by United States Supreme Court precedent,” the 18-page decision states.
     Burrell also rejected the dispensary’s equal-protection challenge to the classification of marijuana as a Schedule I drug under the Controlled Substances Act, finding the claim foreclosed by 9th Circuit precedent, since “the constitutionality of marijuana laws has been settled adversely to [plaintiffs] in this circuit,” as cited in United States v. Miroyan. Schedule I drugs officially have no currently accepted medical use and have high potentials for abuse.
     The judge also denied the plaintiffs’ request to file an amended complaint, “since it is evident that plaintiffs’ claims are foreclosed by United States Supreme Court or Ninth Circuit Precedent, or authority cited in this order.”
     In addition to Holder, the named defendants were Drug Enforcement Administration Administrator Michelle Leonhart and U.S. Attorney Benjamin Wagner of the Eastern District of California.

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