MARIJUANA DISPUTE PUTS SHERIFF AND COUNTY IN DIFFICULT POSITION

Sheriff Dennis Lewis, now in some danger of being found in contempt of
court, is clearly caught in a legal bind not entirely of his own
making. It is an unfortunate position for any officer of the law.

At issue is whether and to what extent federal law pre-empts state
law. The state law in question is the Compassionate Use Act, passed by
voters as Proposition 215 in 1996, that legalizes the use of marijuana
for medical purposes.

As with much legislation created by ballot initiative, this was so
loosely drawn and worded that it has given rise to endless legal
wrangling. Fuel is added by the fact that Prop 215 is abominated by
most police officers, and seen by pot growers, sellers and smokers as
the answer to their prayers. All appear to be working, in their
different fashions, to subvert its intent.

The case in question involves an ounce of pot that was confiscated by
deputies from a Southern Humboldt man during a traffic stop in 1999.
The man was charged with transporting marijuana, but the charge was
dismissed after he produced a physician's recommendation to use
marijuana for a medical condition. On a motion of his lawyer, the
court then ordered the Sheriff's Department to return the impounded
property.

Sheriff Lewis refused. He noted that marijuana in any amount is
considered contraband under federal law, which does not recognize its
medical use. If he returns the ounce, he contends, he could be charged
with violating federal law.

This means the county's top law officer is acting in defiance,
possibly in contempt, of the county's Superior Court. The judge, in
turn, may have overreached himself in assuming that state law
pre-empts federal law. As there has still been no U.S. Supreme Court
ruling on the legality of the Compassionate Use Act, this creates a
most unfortunate jurisdictional snarl.

The county is now trying to unravel this by filing an action against
both the federal Drug Enforcement Agency and against the marijuana
owner, seeking a "declaration of rights and obligations" from the
federal district court -- in effect, telling the sheriff what he should do.

While Sheriff Lewis is indeed caught in the middle of this dispute, it
does not appear to be a situation he tried particularly hard to avoid.
It looks very much as if he was seeking a legal confrontation that
could lead to a federal ruling, perhaps overturning the state law.

The actual amount of marijuana involved, a single ounce, is
negligible. The sheriff would almost certainly not have been arrested
by federal drug agents if he had chosen to obey the court order. The
argument that "transportation" of the ounce makes the offense more
serious is, in this case, ridiculous.

On the other hand, the sheriff's reluctance to give in on the point is
understandable, if not necessarily in accord with the law. The
plaintiff/defendant in the case has since been found growing 84
marijuana plants that he also claims are for medical purposes. Lewis
clearly believes he is dealing with yet another commercial pot grower
attempting to find shelter behind the medical marijuana law, and he
may well be correct.

Still, police must obey the law just like anyone else, even if they
don't agree with it. In this instance, certainly, there is a
legitimate doubt over what the law requires. Let's hope it can be
resolved soon.