California, Garden Grove

[palmspringsbum]

Wacky tabacky case

<span class=postbigbold>Garden Grove police are ordered to return a suspect's marijuana. But the ruling is not as strange as it sounds.</span>

by EDITORIAL, Los Angeles Times
December 4th, 2007


There's no denying that it sounds wacky: The California Court of Appeal has upheld a lower court decision ordering the police to give back the marijuana seized from a driver during a routine traffic stop. This is likely to generate a wave of "Only in California" jokes, but just because it's wacky doesn't mean it's wrong.

In 2005, Garden Grove police officers stopped Felix Kha for failing to yield at a red light. Kha consented to a search of his car, and police found one-third of an ounce of marijuana that Kha explained was for medicinal purposes. Orange County prosecutors dismissed drug charges against him after contacting his doctor, and Kha sought the return of his property. The police refused, saying that returning the drug would violate federal laws against marijuana distribution and possession. The Superior Court of Orange County found for Kha, saying the state never convicted him of possessing marijuana illegally and therefore, under California law, the stash was not contraband. Garden Grove appealed.

Can a city invoke federal law to justify its recalcitrance in complying with state law? This is where things could have gotten sticky. But the court correctly found that in this case federal law did not take precedence over California law. The federal government is perfectly free to seize Kha's marijuana if it chooses, the court found, but medical marijuana is legal in this state and neither the police nor the courts are charged with enforcing federal law. "We would be astonished if prosecutors began filing federal charges in state courts," the court wrote.

Numerous law enforcement agencies sided with Garden Grove in its appeal, arguing that returning the marijuana to Kha was practically anti-American. It would turn cops into criminals and damage the high moral standing of local law enforcement, which often cooperates with federal law enforcement. The court responded that police were not likely to be prosecuted for distributing marijuana unless they intentionally began dealing drugs, and that while it's fine for the police to work with federal agencies, their more traditional duty is to uphold state law.

As this page has previously noted, there is nothing like a polarizing social issue during a period when conservatives hold sway in Washington to convert liberals into champions of states' rights and conservatives into zealous defenders of the federal government. But the court deftly navigated this territory as well. By returning Kha's marijuana, the court wrote, "Garden Grove police will actually be facilitating a primary principle of federalism, which is to allow the states to innovate in areas bearing on the health and well-being of their citizens."

[palmspringsbum]

Thursday, June 18, 2009

Garden Grove's tab on medical marijuana case reaches $219,000

<span class="postbigbold">The city fought a lengthy court battle refusing to return man's medical marijuana.</span>

By DEEPA BHARATH
The Orange County Register

<table class="posttable" align="right" width="420"><tr><td class="postcell"><img class="postimg" src="bin/garden-grove_unit-d.jpg" width="420"></tr></td><tr><td class="postcell">A volunteer at Unit D greets a patient walking in the door. "Unit D", as it is known among the patients there, is a medical marijuana dispensary that has been operating in Garden Grove for a year. Garden Grove City Council members passed a ban on medical marijuana dispensaries in October.</tr></td></table>GARDEN GROVE – The city has paid out $139,000 in attorney's fees to medical marijuana advocates, bringing to an end a four-year court battle in which the city fought the return of a patient's 8 grams in spite of repeated court decisions ordering the city to give his marijuana back.

Americans for Safe Access received the check Wednesday as part of a settlement agreement in the case involving Felix Kha, whose marijuana was seized during a traffic stop. He was issued a citation.

Including this payment, the city has spent about $219,000 on this case, City Attorney Thomas Nixon said today.

Joe Elford, chief counsel for Americans for Safe Access, said the outcome of Kha's case is a victory for medical marijuana patients' rights.

"It's unfortunate that the city of Garden Grove felt the need to spend $250,000 over marijuana that was worth about $200," he said, referring to his estimate of what the city has paid. "They made it extremely difficult for us when they should have returned the marijuana to Mr. Kha three years ago."

City officials say Kha did not have documentation for the marijuana at the time police stopped him, but later produced documentation. The citation was dismissed by an Orange County Superior Court Judge.

But the city of Garden Grove fought it, maintaining that the marijuana should not be returned because federal law lists marijuana as an illegal substance.

The biggest legal challenge before the city was this dichotomy between state and federal law when it comes to the use of marijuana for medical purposes.

The case has turned out to be a "disaster" for Garden Grove, said City Councilman Bruce Broadwater.

"I don't think that we should have spent so much money on an issue where the law is so fuzzy," he said. "To be honest, this one got by us. We, the city council, should have been more savvy and stopped when we should have."

Broadwater acknowledged that City Council members "went along" with the police department on this matter and said they should not have.

Garden Grove police Chief Joseph Polisar said the City Council unanimously supported the decision to move forward with the case. Nothing was done without the council's wholehearted approval, the chief said.

It would be easy to fix this legal mess if marijuana was taken off the schedule of narcotics at the federal level, he said.

"It would be a good thing to ask our federal representatives why they haven't done that," Polisar said.

Elford said he does not accept the argument that the city was following federal law.

"They're simply using federal law as an excuse not to follow state law," he said.

Medical marijuana was legalized in California after the passage of Proposition 215 in 1996. But federal law still deems marijuana a narcotic.

As for the expenses incurred by the city, it was the result of miscommunication between city staff and the legal team, Polisar said.

"I'm not blaming anyone here," he said. "But staff was not advised as to what the other side's legal expenses were. We were not afforded the opportunity to have that discussion. We didn't have information available to us to make an informed decision on how far to take this case.''

In Kha's case, the lower court order was upheld on appeal. Both the California Supreme Court and the U.S. Supreme Court refused to review the decision.

Nixon said Kha's attorneys sought more than $272,000 in fees, but eventually settled this week for $139,000.

Nixon pointed out that at the time of his traffic citation, Kha had absolutely no documentation to show that the marijuana he had was for medical purposes.

"After the fact, he probably paid a doctor to get the documentation he needed to get his marijuana back," Nixon said.

The city had argued that because the seizure was legal in lieu of Kha's documentation, the marijuana did not have to be returned.

Nixon said he believes it is interesting that the Appellate Court stated in its ruling that the city should return to Kha a substance "which is illegal to possess under federal law."

In October, Garden Grove City Council members voted 4-1 to ban medical marijuana dispensaries in the city. There was one known dispensary operating out of Garden Grove. That dispensary, well-known among medical marijuana users as Unit D, is still operating in Garden Grove at that same location. In fact, their business license was renewed by the city in February.

Broadwater said he is surprised to learn that the clinic is still operating in the city. He voted in favor of the ban.

"But if they came back before the council, I wouldn't even oppose it," he said. "The law, when it comes to this issue, is simply not on our side."

Congressman Dana Rohrabacher, a strong proponent of changing federal law to allow use of marijuana for medical and personal use, said he and other members of Congress are working to end this dichotomy between federal and state law.

"I believe federal laws relating to marijuana especially when they are different from state laws, are counter-productive," he said.

But to spend $250,000 to prevent an adult from consuming a small amount of marijuana for medical purposes or otherwise is nonsensical, Rohrabacher said.

"Anybody who can say with a straight face that spending that amount of money on this matter in a time when resources are tight, cannot be taken seriously," he said.