Update: Marijuana Advocates Challenge City Federal Prosecution Claim

The City Council will consider regulations on medical marijuana dispensaries but believe it may lead to the federal prosecution of city employees. Advocates of medical marijuana regulation disagree.

Updated 11:30 a.m. Wednesday to include a statement from the office of U.S. Attorney Laura Duffy.

The City Council will consider medical marijuana dispensaries regulations Wednesday—one year after a local ban was passed.

The Safe Access Ordinance of Imperial Beach was put together by supporters of dispensary regulation who to force city action. If approved, the ordinance will strike down last July.

Within hours of the release of the meeting agenda last week, the city was sent an email by Marcus Boyd of the San Diego Chapter of Americans for Safe Access, who was concerned about the mention of Pack v. City of Long Beach court case.

In a staff report about the ordinance being considered Wednesday, the city claims the court decision says dispensaries could lead to the prosecution of city employees "on the theory that giving a permit amounts to knowingly facilitating narcotics transactions."

In January an appellate court struck down portions of Long Beach's medical marijuana ordinance as preempted by federal law.

Boyd requested the city remove mention of Pack v. City of Long Beach from the staff report and councilmembers be provided a copy of a letter by Joe Elford written shortly after a decision in Pack v. City of Long Beach. Elford is chief counsel for Americans for Safe Access.

"Because this decision effectively renders the previously published opinion in Pack a legal nullity, I urge you to restore the status quo that existed before Pack," Elford said in the letter.

The city denied Boyd's request to strike mention of Pack from the report. City Attorney Jennifer Lyon was not available for comment Tuesday.

Alex Kreit—a professor at the Thomas Jefferson School of Law who was appointed to the San Diego Medical Marijuana Task Force to advise the San Diego City Council—said the idea that the city will face federal prosecution doesn't pass the smell test.

The case is often used by opponents of medical marijuana regulation "as an excuse or scare tactic," he said.

"Nothing in Pack suggests that local officials could be criminally prosecuted for issuing licenses or permits to medical marijuana collectives," he said. "Preemption is an entirely different thing than saying city officials could have been prosecuted for committing federal crimes. "

Though there is "absolutely no viable legal theory under which city employees could face federal prosecution for issuing licenses," Kreit said the law does create uncertainty about the sort of local laws courts will bless.

"Until the California Supreme Court hears these cases and comes down with a ruling, it's going to be a pretty muddled area as far as what municipalities can do," he said.

City employees in some parts of California have said they have been threatened with federal prosecution.

The New York Times reported in an article published at the end of June that city officials in some parts of the state have received letters from U.S. Attorneys that say city staff and officials can be prosecuted.

Last fall the Obama administration instructed U.S. Attorneys to shut down dispensaries. According to the article, at least 500 dispensaries have been shut down in the past eight months, more than in any time period since the passage of Prop 215 in 1996.

Requests for comment by Southern District of California U.S. Attorney Laura Duffy or her office were not returned when this story was published.

According to the North County Times the following statement was released by Duffy's office Tuesday:

"City employees who conduct activities mandated by the ordinance are not immune from liability under the (Controlled Substances Act). The United States Attorney's Office will evaluate all potential civil and criminal enforcement actions on a case-by-case basis in light of the priorities of the Department of Justice and the (U.S. Attorney's Office's) available resources."

Many San Diego dispensaries were shut down by the city of San Diego and its attorney since no law currently exists for zoning or regulation, Kreit said. The San Diego City Council rescinded its regulation last July.

The federal government has been successful in some of its ventures to shut down dispensaries, Kreit said, but hundreds remain open in California and other parts of the country.

"The reality is there's still plenty of them operating out there so there's still significant need of local regulation because I think they are going to continue to operate," he said. "I think thats particularly true if the federal government continues to do what they're doing."

If Imperial Beach's medical marijuana regulation is approved, IB may become one of the only cities in the county with regulation in place.

Before a ban was implemented, the city had a moratorium on dispensaries for two years until 2011.

In 2009 the city entered into a dispensary moratorium that lasted two years and ended with a ban in July 2011.

In summer 2010 the city rejected the findings of a grand jury ruling which called for the city to regulate medical marijuana dispensaries.

In a letter sent in response to grand jury findings the city said it was waiting to see what happens in the Anaheim court case, Prop 19 and "any ordinance could require Coastal Commission approval and possibly voter approval."

The grand jury also recommended that the city adopt a similar model as the Medical Marijuana Task Force who advised the San Diego City Council.

Imperial Beach voters approved Prop 215 in 1996 by 56 percent.

In 2010, though Prop 19 failed to get a majority of votes in California and San Diego County, 54 percent of Imperial Beach voters supported legalization of marijuana.

That is the fourth highest percentage of yes votes in San Diego County behind Solana Beach, Del Mar and Encinitas.

Prop 19 was ultimately rejected by voters statewide.

Tell us in the comments.

What do you think should happen? Should IB allow medical marijuana dispensaries? Is it a good or bad idea for IB?

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Correction: The original version of this story said Imperial Beach was third in the highest percentage of yes votes on Prop 19 among cities in San Diego County in 2010. However IB had the fourth highest percentage of yes votes. Also the original version of this story stated that Alex Kreit's first name is Tom. Changes have made to reflect both of these mistakes. IB Patch apologizes for the error.

Jon Hall July 18, 2012 at 02:26 AM
The City should take a defensive position here until the Federal Government changes the official policy in regards to this Schedule I drug --- which was designated as such in 1961 when The Single Convention on Narcotic Drugs was implemented (this is an international treaty to prohibit production and supply of specific drugs and of drugs with similar effects) There are exceptions such as medical treatment and research under this treaty --- but only the Federal Government can make the *exception to the rule* here (since making treaties is a Federal power only) Without that exception there exists the possibility of prosecution for anyone involved in what has been deemed illegal narcotics trade (even if it has never been done it still could) ...
Libi Uremovic July 18, 2012 at 05:16 AM
the people that feel we should abide by the feds must be very upset with the gop for challenging obamacare..... ...but it's time that we the people put our foot down and clean up our government...
Jon Hall July 18, 2012 at 02:36 PM
Since I am the only *people* who have expressed the opinion of abiding by Federal law I will gladly answer this Challenging Health Care, or any other law, is done through the Congress --- they have the authority to make law --- then the President can either sign or veto the law --- if it is signed it is a done deal --- if vetoed it goes back to Congress for another vote --- enough votes and the veto is overridden --- again, done deal --- unless it is challenged as unconstitutional --- then the courts get involved --- and the law will wind its way through the legal morass until an ultimate decision is made This is how our system of Government works --- it is called checks and balances --- and it has served this nation well for over 200 years now This also works on the State and Local level --- the *Three Branches of Government model* is used everywhere --- including Imperial Beach Change comes in two ways --- by working within the system --- which requires a majority in agreement and passing the constitutional requirement --- or it comes by removing the current system and replacing it --- which not only requires a majority in agreement but an army to make it happen You can yell, scream, stomp your feet, have a tantrum, or post asinine diatribes but all will do no good unless you meet the requirements above and are willing to go the distance for whatever cause moves you Until then all this is just rhetoric ...
Libi Uremovic July 18, 2012 at 02:36 PM
there are countries in this world where the will of the government supersedes the will of the people....but this country isn't one of them... this is a democracy jon.....we've gotten corrupt, but we're going to return to a democracy.....where the rights of man come before the will of the government... in the 1770's king george was overexerting his will....and there were many just like yourself that felt it would be best to go along with the will of the king....to leave it up to the king to 'change himself' and become an enlightened man.... ....and then there were the founding fathers who stood up and said: ENOUGH. when will corruption in our local, state, and federal government stop? when we stand up and say ENOUGH I say enough jon ....enough with the political games and laws created by lobbyists and special interest groups....enough jon..... ENOUGH
John Galt July 18, 2012 at 03:16 PM
Jon - I agree
Ely July 18, 2012 at 03:42 PM
Can you say TSA violating our fifth amendment rights
Summer Hemphill July 18, 2012 at 06:07 PM
Ignoring federal law,city staff & local police the San Leandro City Council reversed course & directed city staff to draft regulations for medical marijuana dispensaries ! Citing recent California Appellate court rulings & the will of the voters & legislature they 5-2 in an abrupt change of direction after originally considering to extend their moratorium. The position of the federal government is likely to change shortly as it's untenable,unreasonable & ultimately unenforceable ! The anti-medical marijuana zealots who've put all their eggs in this last basket are about to get a very rude awakening when the federal government abandons them. It's time for the Murrieta City Council to do the right thing for their constituents by adhering to state law & welcome well regulated medical marijuana dispensaries with open arms like any other legal & legitimate business !
Jon Hall July 18, 2012 at 07:43 PM
libi uremovic --- the USA is a Constitutional Republic, not a Democracy --- I suggest you read up on these things before you speak ...
John Galt July 18, 2012 at 08:16 PM
Hemphill; what city do you live in? This is the discussion for Imperial Beach not Murrieta. Are you so buzzed you can't tell? The problem is not medical marijuana. It is distribution. I like many others voted for the medical care and possible benefits of medical marijuana. What we are being handed is a lark. Fake Doctors writing fraudulent prescriptions so you could get a buzz. I suggest you find a better distribution path and the problem is solved. Ranting about it the way the few supporters of additional crime and additional risk to the public is not the way to go.
Summer Hemphill July 19, 2012 at 01:55 PM
Distribution through "storefront dispensaries" is legal under state law,no problem ! "Fake" doctors ? Any physician who "recommends" medical marijuana must be licensed to practice medicine in California,there are no "fake" doctors ! Doctors aren't allowed to prescribe medical marijuana so no one has ever written a fraudulent prescription for medical marijuana ! Studies have shown that crime decreases in areas where disapensaries operate & increases where they've been shuttered ! You're just another self-righteous simpleton who actually has no idea what they're talking about confusing your personal bias & opinion with facts doesn't make them facts ! As a Californian & user of medical marijuana I have a vested interest in seeing to it that every city adhere to state law by providing "safe & legal access" to medical marijuana ! Although you appear to be vehemently opposed you don't appear to have a dog in this fight ? It is you who appears to be ranting,making unsubstantiated claims & spreading repudiated propaganda,substituting your inept & specious opinion for the factual data you appear to sorely lack ! Fortunately you're representative of the clueless individuals who refuse to abide by the law & law-abiding marijuana patients will see to it that Imperial Beach abides by the law as well ! Isn't it ironic that those crazed by marijuana aren't those using it,but those trying to stop it's use !! IB doesn't need you,as a matter of fact they could most certainly do without you !!!
Jersey July 19, 2012 at 05:21 PM
Aspirin is more dangerous than cannabis.
Jersey July 19, 2012 at 05:24 PM
And it's really funny this "know it all" haters name is "Hemphill" - I don't even smoke weed and think that's funny. Who are you to tell consenting adults what to use for medication, doctors prescribe addictive medications everyday. Get over it, no one is gonna die from cannabis, no one ever has! So who do you think you're saving?
Ed Sorrels September 29, 2012 at 12:55 AM
This has been beat to death for now, I for one am going to sit back and watch what happen s in November and there after when they try oractually do implement the ordinence, Then the fun will start all oiver again !
Ed Sorrels September 29, 2012 at 01:03 AM
And a second thought, The "War" on Marijuana was lost years ago, This ordinence may be the one that kicks open the door to it being removed from the cl.ass #1 drug list, If not this one then the next one, The only question is not if but when common sense will prevail and we will no longer pay 100's of millions of dollars incarserating thousands of minor drug offenders and another 10 or 20 million on the "WAR". Institute state stores like some states do with liquor, sell it over the counter and tax the hell out of it like they do with alchol and cigaretts and cigars, Put the DEA agents to work in the stores and p;ay them out of the ;proceeds, then we are all; happy !


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