Medicinal marijuana

Conflict has small-town start, may set big-time precedent

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When President George W. Bush was running for office in 2000, Allen St. Pierre listened carefully when the candidate addressed one issue: medical marijuana.

St. Pierre, now the executive director of the National Organization for the Reform of Marijuana Laws in Washington, D.C., wanted to know how a strong supporter of states' rights would view state laws permitting medicinal marijuana use, laws that directly conflict with federal rules prohibiting all use of the drug.

While Bush campaigned in Maine, St. Pierre had a journalist friend ask Bush the medical marijuana question, to which the president said he supported states' rights but would rigorously enforce federal laws, St. Pierre said.

Medicinal marijuana cases, such as the current one involving Hayden resident Don Nord, have highlighted a classic conflict between how state and federal governments share power. As disputes over medical marijuana laws make their way into higher courts, basic drug laws and the power shared by state and federal governments could be up for a challenge.

The issue has risen through the court system in several states that have approved medicinal marijuana rules, most notably California.

Nord's case, which stemmed from an October drug raid on his home, is the first time the conflict has appeared in Colorado courts, legal experts say.

St. Pierre is watching the Colorado case, as are many lawyers, supporters of states' rights and supporters of marijuana legalization.

"It is drawing a lot of legal attention all around the country," St. Pierre said. "These (issues) will be playing out over a number of decades, and they will redefine the role of the federal government and the state government."

Sean Connelly, a federal prosecutor for 12 years who now works as a private attorney in Denver, said he's followed the case and thinks it could bring up bigger issues, such as the validity of Colorado's medicinal marijuana law.

"It's unusual," Connelly said. "It's something, though, I believe elected and appointed officials anticipated at the time of the passage of (Colorado's medicinal marijuana law)."

The Hayden conflict

Medicinal marijuana became legal in 1996 when California and Arizona passed laws allowing residents with illnesses such as AIDS and cancer to use the drug. Since then, eight other states -- Alaska, Colorado, Hawaii, Maine, Maryland, Nevada, Oregon and Washington -- have followed with medicinal marijuana laws.

An amendment to the Colorado Constitution allowing medicinal uses of marijuana was passed by 54 percent of state voters Nov. 7, 2000.

Less than three years after its passage, on Oct. 14, the state-federal conflict that the amendment's opposition had anticipated sprouted up in Hayden, when Nord's home was searched by officers with the Grand, Routt and Moffat Narcotics Enforcement Team.

Nord, 57, who has battled cancer, diabetes and chronic pain, is a registered marijuana user under Colorado law. Drug possession charges were not pressed against Nord because they were filed too late, but Nord's plants, growing equipment and drugs were taken.

A few weeks later, Nord went to court to get his drugs back. Routt County Judge James Garrecht ordered that the drugs be returned and, after they were not, issued contempt citations for the officers involved in the search. The U.S. Attorney's Office then entered the case on behalf of the officers.

Now, U.S. District Judge Walker Miller is deciding whether the case should be removed from the state court system and decided in a federal court.

On Jan. 29, Nord and his attorney, Kristopher Hammond, walked amid Denver's tall, glassy buildings on their way to federal court.

Nord carried his oxygen supply, answering reporters' questions and smiling for photographers. He told them that though he didn't expect the case to make it to Denver, he would take it as far as he could.

Central legal issues

In the federal District Court hearing last month, assistant U.S. attorney Michael Hegarty said the U.S. Attorney's Office didn't seek out the dispute but entered the case because federal officers faced contempt charges for doing their jobs.

The clear conflict between state and federal rules was a focus of Hegarty's brief asking that the contempt citations be dismissed.

According to the U.S. Constitution's Supremacy Clause, federal law overrides state law when the two conflict, the brief reads. Similarly, officers are not bound by the order of a county court judge that also conflicts with federal law, the brief reads.

Officers involved in the case, who are either federal agents with the U.S. Drug Enforcement Agency, or are county and municipal officers deputized through the federal GRAMNET task force, were acting under federal law and followed it perfectly, Hegarty said.

Central to Hammond's argument that the case should not be removed to a federal court is that most of the officers involved in the search were not truly federal agents and so should follow state law.

Hammond told the federal district judge that since the search warrant was requested through a state judge, and charges would have been filed in state court, state rules could not be ignored.

"It's deceptively simple," Hammond said later. "Should GRAMNET obey a court order?

"But, it opens a huge Pandora's box of other questions. ... On a larger scale, it might affect how other task forces operate. It could go beyond that," he said.

How far will it go?

The Colorado case brings up larger issues, such as whether the federal government should have any control over drug use within states, some legal experts say.

Drug laws stem from the 1970 Controlled Substances Act, which is based on the federal government's right to regulate interstate commerce.

To regulate distribution and possession of drugs between states, the act says that the federal government must have a similar control of drugs within each state. The act also designates marijuana as a Schedule I drug, which means it has high potential for abuse and has no accepted medical use.

"What the (federal) government is trying to do is reach inside a state and regulate an activity wholly within a state that has nothing to do with interstate commerce because they disapprove of that activity," said Randy Barnett, a professor at Boston University School of Law. "They're overstepping their bounds."

Barnett represented two women who use marijuana for medicinal purposes in a case that made it to the 9th Circuit Court of Appeals. On Dec. 16, that court ruled in favor of Barnett, saying it is unconstitutional to prosecute sick people under federal law for using medicinal marijuana if the users grow the drug or get it free.

If the decision holds, the two women cannot be arrested for using or growing medicinal marijuana, a ruling that should set helpful precedent for other medicinal marijuana users.

Any court case involving a state marijuana law could turn into an opportunity to challenge federal power over drug laws, or simply federal power over states.

But whether the Colorado case will give a federal court a chance to rule on the conflict between federal and state marijuana laws remains to be seen.

The case could be too narrow to allow for a broader, precedent-setting ruling that either would challenge the state law or dilute federal control, said Jeralyn Merritt, a Denver-based criminal defense attorney who has followed Nord's case from its start.

The case is not positioned to allow a ruling on whether the state law trumps the federal law, or vice versa, Merritt said. Rather, this case is about whether the officers were justified in refusing to obey a state court order.

Nonetheless, it may find its way to the U.S. Supreme Court, she said.

"There's no question, it could have national implications," Merritt said. "It's important in the sense that you have a state saying to the feds, 'If you don't follow the rules, you're accountable to us.'

"It's telling the feds they can't just thumb their nose at state law. They're subject to the rules, too."

California cases

Rulings on medicinal marijuana state laws have made headlines during the past few years, with the most notable cases coming out of California.

Barnett's recent victory is one of those spotlight cases.

Also, in October 2002, the 9th Circuit Court of Appeals in San Francisco upheld the right of doctors to recommend marijuana to their patients based on First Amendment rights. The U.S. Supreme Court chose -- coincidentally, on the same day that GRAMNET raided Nord's home -- not to hear the case, in effect upholding that ruling.

However, in a 2001 case, the U.S. Supreme Court ruled that medical need was not a valid defense for distributing marijuana to sick people, saying that there was not enough scientific evidence showing the drug was helpful.

No medicinal marijuana decisions have come out of the 10th Circuit Court of Appeals, legal experts said. Colorado is the only state within that court's jurisdiction to permit medicinal use of marijuana.

Whether Nord's case continues to higher courts or ends within the next few weeks depends, in part, on funding. Nord, who is on a fixed income, pays Hammond $100 a week, a fraction of the case's costs.

"In a perfect world, we would fight the case as far as we had to go to fight it," Hammond said. "This isn't a perfect world. But if everybody in the United States who ever smoked marijuana sent Don a dollar, we wouldn't have any financial problems."

Hammond, new to medicinal marijuana litigation, has been receiving help from people across the state and country in the form of advice, research and other tips.

A legal defense fund has been set up for Don Nord, Hammond said, and funds can be donated to Don Nord at P.O. Box 1616, Hayden, CO 81639.

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