Riverside DA Takes Aim at Dispensaries With Sweeping Claim About California's Prop. 215

RIVERSIDE DA GROVER TRASK MAKES SWEEPING CLAIM THAT PROP 215 IS AGAINST FEDERAL LAW -- ADMITS STATE LAW PROTECTS PATIENTS AND COOPS, BUT NOT DISPENSARIES Riverside DA Grover Trask has joined with San DIego, San Bernardino and Mercced counties in opining that Prop 215 is unenforceable because marijuana is against federal law. His opinion may be found at http://www.canorml.org/temp/Trask_white_paper.pdf. Trask is off track in asserting that "no state has the power to grant its citizens the right to violate federal law." Prop. 215 does not pretend to override the federal law against medical marijuana; it simply provides that the state not enforce it. Legislation of this sort is entirely within the American constitutional tradition, dating back before the Civil War when states refused to enforce federal fugitive slave laws. On closer examination, it turns out that Trask's claims are less sweeping than to pretend that Prop. 215 is entirely non-enforceable. He admits that patients, caregivers and cooperatives are protected by Prop. 215, but makes the argument that storefront dispensaries are not. He notes, accurately, that the former are explicitly protected under state law by Prop. 215 and SB 420, while the latter are no:

"We believe that Gonzalez v Raich does affect California law. However, we also acknowledge that the California statues offer some legal protection to 'individuals within the legal scope of" the acts. The medical marijuana laws speak to patients, primary caregivers, and true collectives. These people are expressly mentioned in the statutes and, if their conduct comports to the law, may have some state legal protection for specified marijuana activity. Conversely, all medical marijuana establishments that fall outside the letter and spirit of the statutes are not legal: including dispensaries and store-front facilities. These establishments have no legal protection. The Attorney General's opinion does not present a contrary view."

Trask goes on to argue that dispensaries are a danger to the community, citing familiar police anecdotes about robberies, assaults, burglaries, murderers and other criminal incidents. He presents no evidence that these dangers are any higher for dispensaries than for other licensed businesses, nor does he discuss the positive experience of communities with successful dispensary licensing, such as Berkeley, West Hollywood or Oakland. Trask goes on to argue that the county risks federal liability for conspiracy if it permits licensed dispensaries: "With respect to issuing business licenses to medical marijuana store-front facilities a very real issue has arisen: counties and cities are arguably aiding and abetting criminal violations of federal law. Such actions clearly put the counties permitting these establishments in very precarious legal positions." The paper concludes:

"The Riverisde Co DA's Office believes that the cooperatives being considered are illegal and should not be permitted to exist within the County's borders. They are a clear violation of federal and state law, they invite more crime, and they compromise the health and welfare of the citizens of this County."

Trask's legal analysis is not off track with regards to the technical legality of dispensaries. If he wants to, the law gives him power to follow the example of San Diego and close them. But he is wrong to assert that dispensaries presents a criminal nuisance. Fundamentally, it is the failure of law enforcement to allow safe and lawful commerce in cannabis that creates the nuisance. Riverside residents should be asking why their DA wants patients to buy marijuana from criminals rather then legally licensed businesses. - D. Gieringer, Cal NORML Desert Sun article: Riverside County DA: Medical marijuana illegal, state law can't be enforced -- Opinion says no state has the power to allow citizens to violate federal law