Long Beach Pot Ordinance Ruled Illegal: Cannabis Activists Winning?

[Jacob Bell]

On Sept. 24, 2010, an unusual lawsuit found its way to the Los Angeles Superior Court: a pair of pot smokers in Long Beach sued the city to overturn its own medical marijuana ordinance, a law that ostensibly protected the rights of city residents with valid doctors' recommendations to smoke cannabis. The two plaintiffs, Ryan Pack and Anthony Gayle, one of whom had been in a car crash and the other who suffered from renal failure, certainly didn't see it that way. Because Long Beach claimed that the collectives where they happened to obtain their cannabis were violating the new ordinance, the city had threatened to raid the establishments if they didn't shut down by Aug. 31 of that year.

Pack and Gayle's lawsuit made a seemingly counter-intuitive argument, at least coming from medical marijuana advocates: because marijuana is still illegal under federal law, Long Beach's pot ordinance was illegal and the city's threat to shut down the clubs in question was therefore unenforceable. Although a judge denied the lawsuit, the plaintiffs appealed and won. Yay!

The only catch: their successful appeal apparently now provides a precedent for 420-friendly ordinances in cities throughout California to be overturned.

Mark Pappas, Pack and Gayle's attorney, sent out a celebratory email yesterday claiming the ruling was a huge victory, noting there are roughly 100 criminal cases pending against people the city has alleged are in violation of the marijuana ordinance. "Those charges were all for failing to have a City permit," Pappas argued. Meanwhile, the city has collected $15,000 application fees from several dozen clubs who sought permits to operate in the city. "Since the permit provision and permit fee provisions are completely invalid, the City will have to have to return close to a million dollars paid to it," he added. "Finally, the patients who have suffered illegal raids, arrests, and attacks are now no longer subject to the outrageous provisions of a clearly invalid city law."

Pappas' enthusiasm isn't shared by the California chapter of Americans for Safe Access, (ASA), which along with the American Civil Liberties Union, (ACLU), filed an amicus brief opposing his lawsuit.

"The Pack ruling appears to call into question the entire legal basis of numerous other local dispensary regulation schemes that have been successfully adopted by other California cities (as well as the state of Colorado)," wrote Dale Gierenger of CANORML, the California chapter of the National Organization for the Reform of Marijuana Laws, in an email alert this morning. "Taken seriously, it could undermine the whole basis for legal control and taxation of medical cannabis in California."

While it's obvious this is a legal "victory" most pot activists seem to wish had never happened, it's still too early to know exactly how this ruling will affect ongoing criminal prosecutions, such as the high-profile one against Joe Grumbine and Joe Byron in Long Beach Superior Court, who won't be able to use California's legalization of medical marijuana in their defense and who face several years in state prison if convicted, much less if it will effectively overturn Long Beach or other cities' marijuana ordinances. Notes Gierenger. "Further litigation in higher courts appears inevitable."

News Hawk- Jacob Ebel 420 MAGAZINE
Source: blogs.ocweekly.com
Author: Nick Schou
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Website: Long Beach Pot Ordinance Ruled Illegal: Cannabis Activists Winning?

 

[RaysDad]

I am afraid that this ruling is going to blow up in our faces here in CA. It gives cities a preference to go and shut down dispensaries at will. RD

 

[Gothmog]

How can anyone see this ruling as a "victory" for MMJ activists? From the L.A. Times story on the case, here:

In a decision that could upend the way California cities regulate medical marijuana, a state Court of Appeal has ruled that Long Beach's ordinance regulating dispensaries violates federal law.

The city held a lottery, issued permits to the winners and charged fees, which the three-judge panel said put it in the position of authorizing the distribution of marijuana in direct conflict with the federal Controlled Substances Act, which makes the possession and sale of the drug illegal. Marijuana use remains illegal under California law except for medical purposes.

(Emphasis mine.)

I didn't know that a state court could "take judicial notice", as I believe the expression is, of Federal law. For instance, I'm fairly certain a state court can't try a defendant for violation of a Federal statute.

If the state courts are merely going to invoke the higher authority of Federal statute, then how can we trust them to adjudicate any case involving MMJ within the framework of Proposition 215 and SB420, which were enacted by the people of California and their representatives?

Seriously, this isn't winning. This is losing.