Stay off the grass

Back in June 2005, local police officers in Garden City, Calif., arrested Felix Kha for marijuana possession. After the charges were dropped by local prosecutors when they learned that the pot was for medicinal purposes, Kha demanded his weed back, and the courts agreed with him. The city resisted, eventually taking their case all the way the U.S. Supreme Court. On Monday, the Supreme Court decided they would not consider the case. This means that the lower courtâÄôs ruling stands and the city must return the seized reefer to Kha. But letâÄôs take a step back and analyze some of the subtler aspects of this case, which Joe Elford, an attorney for a medical marijuana advocacy group called âÄúour biggest legal victory to date,âÄù in TuesdayâÄôs Los Angeles Times. Felix Kha was pulled over on June 10, 2005 for failure to yield at a red light. Kha consented to a police search of his car and in the process of the search police found a small bag containing a pipe and a plastic container labeled âÄúMedical Cannabis.âÄù Inside the container was just less than one-third of an ounce of marijuana. Kha told the officers he had purchased the marijuana from a lab in Long Beach and used the drug because he suffers from severe pain. He also said he had a doctor’s referral to use marijuana and gave a paper copy of the referral to the officers. Nonetheless, the officers seized the marijuana and cited Kha for unlawfully possessing less than one ounce of the drug while driving, and also for running the red light, both violations of California law. Kha pled guilty to the traffic violation, but contested the drug charge. After he presented a physicianâÄôs statement authorizing him to use the cannabis for an undisclosed âÄúserious medical condition,âÄù local prosecutors dropped the drug charge. Naturally, Kha wanted his ganja back, so he filed a formal petition for the return of his property. The Garden Grove prosecutor, however, refused the request. So they went to court. A California trial court determined that since the medical marijuana was legal under California law, the police department was required to return the pot to Kha. This order did not sit well with the city of Garden Grove. They took their case to the California Court of Appeals, asking them to strike down the lower courtâÄôs order demanding that they return KhaâÄôs stash of Mary Jane. In its appeal, the city claimed it was âÄúcaught in the middle of a conflict between state and federal law,âÄù since KhaâÄôs possession of medical bud was legal under California law, yet violated federal prohibitions against marijuana possession. At this point, other parties started to get involved. The California attorney general filed a brief in support of Kha and CaliforniaâÄôs existing medical marijuana laws. Several other California cities and many different law enforcement associations filed briefs on behalf of Garden Grove. On Nov. 28, 2007 the three-judge panel announced a unanimous ruling that upheld the district courtâÄôs order that the city return the cannabis to Kha. After dismissing the cityâÄôs arguments that returning KhaâÄôs reefer would qualify as âÄúaiding and abettingâÄù Kha in violating federal law, the court discussed the various state and federal laws regarding marijuana usage for medicinal purposes. The court noted that, while possession of marijuana is generally prohibited in California, its medical use has been legal under the stateâÄôs law for more than a decade. The court said that under the stateâÄôs law, KhaâÄôs possession was clearly legal. The court went on to discuss federal marijuana laws. Under federal law, marijuana is classified as a âÄúSchedule IâÄù drug, and thus is never legal, even for medicinal purposes, because of its âÄúhigh potential for abuse,âÄù among other things. The court said that Kha was in violation of federal law by possessing marijuana in his car. And so the appellate court found itself in a delicate situation. Kah had violated federal law, but not state law, and now that the state wasnâÄôt pressing charges, was the city required to return his (federally prohibited) dubious doobage? Yes, the court said. The goal of the federal law was to âÄúto combat recreational drug abuse and curb drug trafficking,âÄù and thus did not nullify CaliforniaâÄôs more lenient state laws. As far as local police enforcement of the federal marijuana laws? âÄúIt is not the job of the local police to enforce the federal drug laws,âÄù the court stated. Despite the setback, Garden Grove appealed the case to the California Supreme Court, which declined to consider the case. The city then appealed to the U.S. Supreme Court, and when the nationâÄôs highest court rejected the case Monday, Garden Grove was out of options. The marijuana was illegal, but hey, at least it was legal. Confused? Yeah, me too. But in addition to the incongruity between federal and state laws, this case raises social and political issues worth considering, many of which cross typical partisan boundaries. Sure, thereâÄôs the marijuana thing. California has continued to be a pioneer in passing pot-friendly laws. Maybe itâÄôs because theyâÄôre progressive, or maybe itâÄôs because theyâÄôre a bunch of hippies, but in the right circumstances, medical marijuana is legal in California, but illegal under our national laws. Does this mean that we need to reassess just how comprehensive we want our national âÄúwar on drugsâÄù to be? Then thereâÄôs the government issue: Where should the power to decide things like drug policy reside? In Washington D.C. and Congress? Or in our own state legislatures? Who knows whatâÄôs really best for us and who wields the power most effectively? And, when the laws of these governing powers collide, which one should be (ahem) weeded out? Jake Parsley welcomes comments at [email protected]