Writing Shotgun

‘IT’S A DELICATE SITUATION’

Rachel PowersMon. February 25
 

When state and federal laws conflict the City Attorney is put in a very awkward position. Local businesses, too.

On October 2nd of last year federal DEA agents raided Long Beach Compassionate Caregivers (aka LBCC–no jokes, people), one of 11 medical marijuana dispensaries then operating in Long Beach. Despite the 1996 passage of Prop. 215 (The Compassionate Use Act, legalizing the use of medical marijuana when obtained with a doctor’s prescription), and further codification with the passage of SB 420 (implementing the state Medical Marijuana Program), the federal government presented a warrant, seized $10,000 and 33 kilos, and arrested dispensary operator Samuel Matthew Fata on charges of possession with intent to distribute. LBCC’s doors have been closed ever since.

We wondered how something like this happens: how do federal agents carry out a search and seizure order against citizens engaged in practices that are, on the face of it, legal in their own state and therefore in their own city? Is the city necessarily involved in the federal action, and if so, is it a matter of requirement or inclination?

In short, how does Long Beach position itself on the field of this little states’ rights battle over medical marijuana?

Yesterday I spoke with the City Attorney’s point man on medical marijuana, Deputy City Attorney Richard Anthony, beginning with a question about the status of the case against Fata. Anthony: “There’s a case?” I asked how many dispensaries are currently operating in the city, and he said, “I don’t know…I haven’t seen any follow-up.” Noting that just the other day he had walked by a billboard for a dispensary, Anthony admitted, “I suppose that they are operating, but I have no idea how many there might be.”

Clearly, I thought, the city does not share the federal government’s dread regarding the perils of rolling your own when you are riddled with liver cancer. And then I realized that Anthony (who graduated from law school in 2000) and his boss, City Attorney Bob Shannon (a philosophy major from UCLA who joined the bar in ‘68), actually post-date the Beatles. In fact, in department photos they look nothing like Richard Nixon, scowling into the middle distance while trudging down the San Clemente beach in a business suit. They are not particularly inclined to join the war against the devil’s weed, given that California voters passed Prop. 215 and the City Attorney’s office is, Anthony stresses, “a political subdivision of the State of California.”

The federal government classifies marijuana as a schedule 1 substance, right up there with heroin. It is illegal, and strictly speaking, Prop. 215 does nothing to legalize it. Prop. 215 legitimizes a patient’s claim that they should be exempt from criminal penalties for possession, use, and even small-scale cultivation: it provides the seriously ill with a legal defense. “It puts the city in an odd position–it puts every city in California in an odd position,” Anthony says. Since no one wants to look as if they support legalization, nor do they want to be perceived as picking on the terminally ill, legal wrangles have focused on dispensaries: there is considerable debate as to whether or not Prop. 215 allows for the sale of marijuana and, by extension, storefronts. This is the grey area that every California city must wade into.

“There are many [cities] that have banned dispensaries outright, and there are those that affirmatively allow them and regulate them, and we’re kind of in the middle,” Anthony explains. And so Long Beach has refrained from passing any ordinances that explicitly prohibit dispensaries, choosing instead to withhold business licenses. It is, as Anthony puts it, a “soft ban.”

“That was the City Attorney’s decision, and that is because we did not want to affirmatively license and permit activity that is illegal under federal law…However we are not aggressively pursuing enforcement actions against businesses that are currently operating without licenses. It’s a delicate situation,” Anthony says. “It’s effectively a ban on the business, because you can’t do business in Long Beach without a business license. But as Mr. Shannon pointed out, he’s not making it a priority to go after people who are operating illegally in this way. But we have the right to. So they are kind of operating–I don’t want to say ‘under a black cloud’ but you know what I mean. They’re operating under the threat that we could change our opinion, but so far we have not…so far the status quo has been working so the community at large seems to be ok with the way things are going.”

So much for the dispensaries. As for issues of jurisdiction: I asked Anthony if the City Attorney’s office had received any advance notice of the DEA raids, and if there had been any communication between his office and the DEA on this issue. “No, and I think I would know about that…I have not received any [notice]. I didn’t know anything about the DEA raids before they happened.”

And were local police involved the raid? “I suspect that the police department would be given notice of upcoming raids, but I think that’s probably all they do, because they don’t have to have cooperation of the PD in order to enforce federal law in Long Beach.”

“Any federal law enforcement agency has the right to operate anywhere in the country…They are going to take action against dispensaries with or without the assistance of local law enforcement agencies. Which I guess is what they’ve done.”

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Viewing 7 Comments

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    The City Attorney and the District Attorney are different offices (and different people). But Long Beach also has a City Prosecutor (yet a different office and different office holder). Mr. Shannon is the City Attorney, not the District Attorney.
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    You are right!

    And I am an ass.

    I'm about to make some fixes, with a very red face.
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    I am very much a supporter of limited Federal powers and states' rights having as much precedent as possible. We have several opportunities with specific issues to be hypocritical in our preference for states rights over Federal rights, or more precisely we should saw state jurisdiction over federal federal jurisdiction as I feel the word "rights" is tossed about much too freely.

    I agree that the legality and use of marijuana should be a state's jurisidiction and the Feds have the right to jurisprudence and laws of interstate and international trafficking.

    My question to those who support the right of California to have control of marijuana use and laws to said effect superceeding those of the Federal government is this in regards to your affinity for strong states' rights on this issue: Do you feel that states should have similar rights and control over abortions? Gay marriage? Should Kansas be able to severely restrict the conditions under which and abortion may take place? If Alaska passes legislation that allows same sex marriages or unions to replicate exactly those between man and woman, does North Dakota have to recognize those same sex unions? Do you feel that a California resident receiving medical marijuana treatment should be allowed to be treated in Utah where they may not have similar laws? Where is the line?

    Picking and choosing which laws, or issues should be left to the states and which to the Federal government becomes sticky when we take specific issues we support and how the application of states' rights v. federal rights most benefits our position. Thanks for the artilce, these discussions beyond the single issue of marijuana, but to the rights and areas of authority of local, state and federal powers are critical to our being a country of laws based on the Constitution.
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    Without being a lawyer, let alone having a degree in constitutional law, it seems pretty simple to recognize that when the rights of individuals are curtailed in some fashion (reduced access to medical procedures for certain citizens, reduced capabilities to form loving financial relationships between certain citizens, etc), a state runs the risk of running afoul of equal protection, which is guaranteed by the Constitution. Regulating or restricting access to Herb has no connection with Constitituional guarantees other than the guarantee that Congress's decision to stick its nose in this business is to be respected because the Supreme Court says Congress can.

    So I commend you for posing the question, and I will now refrain from casually bandying about the "states' rights" phrasings, and will stick to what are hopefully more cogent arguments.
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    What about the death penalty? Take the same circumstances, let's say killing of a peace officer while committing another crime (I wish this were only hypothetical but unfortunately it happens). In Texas or California the killer can get the death penalty, in New York or New Jersey there is no death penalty. Each state has determined their own extent of equal protection and just punishment. Some argue that the same determination on the state level should apply in the case of abortion. Some states may ban, others allow under certain circumstances (danger to mother, incest, rape), other may allow it as long as the mother desires it. In both instances, taking of life--I know arguably for some/many on the abortion issue--is involved, on one side (execution) states are allowed to self-determine; on the other (abortion) federal government has precedence and states that have tried to ban or severly restrict the practice have been over turned.

    I find the juxtaposition of these two issues very interesting to look at in how supporters/detractors divide. Typically pro-abortion supporters are more liberal and are anti-death penalty and anti-abortion supporters are more conservative and are pro-death penalty. The first class generally wants federal government to have final say and all states to allow abortion and ban the death penalty; the second class wants the opposite, or at minimum allow each state to decide for itself.

    Breaking the Constitutional powers of the federal and states governments down to specific issues and then following to the supporters and detractors is very interesting to me. As the old cliche goes conservatives want the (federal) government out of everything but the bedroom and liberals want the (federal) government in everything but the bedroom!
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    I think that your end summary misses the point for us liberals. We tend to want the federal government involved when states are messing with people's rights. And while I am unabashedly opposed to the death penalty in all cases, the fact is that the Constitution's guarantee of equal protection only applies citizens (this is a position with which I do not agree, but is a stance that the Supreme Court has consistently upheld). Given this stance, the unborn are not yet citizens for whom equal protection is a right guaranteed by the Constitution (yet, at least). One has to either be born here (i.e. born) or naturalized via some other process (which so far only occurs after one has been born). So your example of the death penalty is perfect --- the states enforce it unequally and thus it does violate equal protection in the most heinous fashion. Though this is the weakest argument against the death penality, I'd prefer to keep this discussion to the question you posed: how us liberals try to rationalize our views of "states rights" vs how conservatives view them.

    But since I am not qualified as a Constituional scholar or as a lawyer, I am probably going to get reamed by people who are.
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    DK: Let them ream, I enjoy your viewpoints and the opportunity to exam these issues that have been examined for decades in the case of abortion and longer in the case of the death penalty. I only wish that more people would examine and think about the big part of the issues; i.e. states jurisdiction v federal jurisdiction; what is the role of each level of government; what is the role of council representative, governor, senator, president. Too many voters, and non-voters, care only about the moment and the singular part of the singular issue on this day; they don't seem to think about how the issue is solved or dealt with today in relation to what it will mean five, ten or even fifty years in the future. Thanks DK.
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