STAY OFF THE GRASS

Back in June 2005, local police officers in Garden City, Calif.,
arrested Felix Kha for marijuana possession. After the charges were
dropped by local prosecutors when they learned that the pot was for
medicinal purposes, Kha demanded his weed back, and the courts agreed
with him. The city resisted, eventually taking their case all the way
the U.S. Supreme Court.

On Monday, the Supreme Court decided they would not consider the
case. This means that the lower court's ruling stands and the city
must return the seized reefer to Kha.

But let's take a step back and analyze some of the subtler aspects of
this case, which Joe Elford, an attorney for a medical marijuana
advocacy group called "our biggest legal victory to date," in
Tuesday's Los Angeles Times.

Felix Kha was pulled over on June 10, 2005 for failure to yield at a
red light. Kha consented to a police search of his car and in the
process of the search police found a small bag containing a pipe and
a plastic container labeled "Medical Cannabis." Inside the container
was just less than one-third of an ounce of marijuana.

Kha told the officers he had purchased the marijuana from a lab in
Long Beach and used the drug because he suffers from severe pain. He
also said he had a doctor's referral to use marijuana and gave a
paper copy of the referral to the officers.

Nonetheless, the officers seized the marijuana and cited Kha for
unlawfully possessing less than one ounce of the drug while driving,
and also for running the red light, both violations of California
law.

Kha pled guilty to the traffic violation, but contested the drug
charge. After he presented a physician's statement authorizing him to
use the cannabis for an undisclosed "serious medical condition,"
local prosecutors dropped the drug charge.

Naturally, Kha wanted his ganja back, so he filed a formal petition
for the return of his property. The Garden Grove prosecutor, however,
refused the request. So they went to court. A California trial court
determined that since the medical marijuana was legal under
California law, the police department was required to return the pot
to Kha.

This order did not sit well with the city of Garden Grove. They took
their case to the California Court of Appeals, asking them to strike
down the lower court's order demanding that they return Kha's stash
of Mary Jane.

In its appeal, the city claimed it was "caught in the middle of a
conflict between state and federal law," since Kha's possession of
medical bud was legal under California law, yet violated federal
prohibitions against marijuana possession.

At this point, other parties started to get involved. The California
attorney general filed a brief in support of Kha and California's
existing medical marijuana laws. Several other California cities and
many different law enforcement associations filed briefs on behalf of
Garden Grove.

On Nov. 28, 2007 the three-judge panel announced a unanimous ruling
that upheld the district court's order that the city return the
cannabis to Kha.

After dismissing the city's arguments that returning Kha's reefer
would qualify as "aiding and abetting" Kha in violating federal law,
the court discussed the various state and federal laws regarding
marijuana usage for medicinal purposes.

The court noted that, while possession of marijuana is generally
prohibited in California, its medical use has been legal under the
state's law for more than a decade. The court said that under the
state's law, Kha's possession was clearly legal.

The court went on to discuss federal marijuana laws. Under federal
law, marijuana is classified as a "Schedule I" drug, and thus is
never legal, even for medicinal purposes, because of its "high
potential for abuse," among other things. The court said that Kha was
in violation of federal law by possessing marijuana in his car.

And so the appellate court found itself in a delicate situation. Kah
had violated federal law, but not state law, and now that the state
wasn't pressing charges, was the city required to return his
(federally prohibited) dubious doobage?

Yes, the court said. The goal of the federal law was to "to combat
recreational drug abuse and curb drug trafficking," and thus did not
nullify California's more lenient state laws. As far as local police
enforcement of the federal marijuana laws? "It is not the job of the
local police to enforce the federal drug laws," the court stated.

Despite the setback, Garden Grove appealed the case to the California
Supreme Court, which declined to consider the case. The city then
appealed to the U.S. Supreme Court, and when the nation's highest
court rejected the case Monday, Garden Grove was out of options. The
marijuana was illegal, but hey, at least it was legal.

Confused? Yeah, me too. But in addition to the incongruity between
federal and state laws, this case raises social and political issues
worth considering, many of which cross typical partisan boundaries.

Sure, there's the marijuana thing. California has continued to be a
pioneer in passing pot-friendly laws. Maybe it's because they're
progressive, or maybe it's because they're a bunch of hippies, but in
the right circumstances, medical marijuana is legal in California,
but illegal under our national laws. Does this mean that we need to
reassess just how comprehensive we want our national "war on drugs"
to be?

Then there's the government issue: Where should the power to decide
things like drug policy reside? In Washington D.C. and Congress? Or
in our own state legislatures? Who knows what's really best for us
and who wields the power most effectively? And, when the laws of
these governing powers collide, which one should be (ahem) weeded
out?