If police officers take medicinal marijuana from a registered user in Colorado, the federal government has to give it back, according to the Controlled Substance Acts, state rights and individual rights to "life, liberty and the pursuit of happiness."
That is the message of a motion filed in U.S. District Court on Monday by Hayden resident Don Nord.
A ruling that does not make officers return the medical marijuana they seized from Nord last fall would mean the federal government is overstepping its power, the motion states.
"Then Congress would be authorizing the federal government to reach into the state's administration of its laws, the private and personal decisions of sick and dying patients, their relationships with their physicians, and their compliance with a valid State law," the motion, written by Nord's attorney Kristopher Hammond, reads.
The U.S. Attorney's Office, representing the officers, has argued that the officers were doing their job by following federal law and that according to the U.S. Constitution's Supremacy Clause, federal law overrides state law when the two are in conflict.
Nord, 57, became the center of a conflict between state and federal rules when officers with the Grand, Routt and Moffat Narcotics Enforcement Team seized his marijuana. According to a voter-approved rule, Colorado allows the use of marijuana for medicinal purposes. Under federal rules, the drug is illegal for everyone.
In mid-November, Nord went to court asking that his marijuana be returned. After the state court held the officers in contempt of court for not returning the drugs, U.S. District Judge Walker Miller removed Nord's case to federal court.
Now, Miller will decide whether those contempt charges should stand.
Nord's motion first states that the federal officers involved did not have the authority to use a state search warrant and that the federal government should not be able to take up the case.
Most of the response focuses on why the federal government does not have the power to prohibit the return of Nord's medical marijuana.
One reason is that the Controlled Substance Act falls under Congress' ability to regulate commerce between states, but in Nord's case, marijuana was grown and used in Nord's home, so has no relation to interstate commerce, the response states.
Also, people have the right to "ameliorate pain and to prolong life," which means that the federal government cannot prevent seriously ill patients from using marijuana, the response states.
Jeff Dorschner, spokesman for the U.S. Attorney's Office, said the bottom line was that marijuana is considered a Schedule I controlled substance by the federal government, which means it is one of the most dangerous and addictive drugs.
A ruling in favor of Nord could be far-reaching, Hammond said. When asked whether he thought the case could go to the U.S. Supreme Court, he replied, "If neither side runs out of gas, it probably will."
Dorschner, however, said he felt the case was constrained by its facts and probably would not result in a precedent-setting ruling.
The U.S. Attorney's Office will respond by Sunday, after which point Miller may schedule an evidentiary hearing before making a decision.
-- To reach Susan Bacon, call 871-4203
or e-mail firstname.lastname@example.org