FUGITIVE SLAVE ACT USED IN ARGUMENTS AGAINST POT LAW

There was bound to be a backlash against the spate of actions by the Bush
administration against the will of California's voting majority, ranging
from challenges to the state's ability to set its own smog standard to a
steady undermining of the 1996 Proposition 215, which aimed to legalize
medical marijuana. The reaction has begun.

Predictably, the first moves against Bush policies come from two areas that
have long been among the state's most freewheeling and left-leaning, Santa
Cruz County and the city of Arcata on the north coast.

In Arcata, local action aims at the federal Patriot Act, which has never
been used in that city. Passed in the wake of the Sept. 11, 2001, terror
attacks on New York City and the Pentagon, the law allows many forms of
surveillance and permits indefinite custody on vague anti-terror grounds.
It even requires bookstore owners and librarians to hand over information
on patrons' reading habits on demand.

Arcata, which has long had a "foreign policy" featuring City Council
resolutions against global warming and the invasion of Iraq, this spring
forbade its top nine city officials from complying voluntarily with any
federal request for information on citizens under the Patriot Act. The
penalty: a $57 fine for each offense. The only exceptions would be if
officials first asked the City Council's permission to comply with requests
from federal authorities.

The ban on voluntary action made Arcata unique among scores of cities and
counties around America that have formally protested what they see as
infringements on individual liberty contained in the 342-page Patriot Act.

Santa Cruz County took a unique action of its own. Already out front in the
battle over medical marijuana because of its sponsorship of a cooperative
and its distribution of the weed to medical users from the steps of City
Hall last year, the county has filed a lawsuit seeking to halt all federal
raids on local users of medical marijuana and those who grow plants for them.

No locality has ever won a court order preventing federal agents from
enforcing federal law in its jurisdiction. Plenty have tried. Southern
states and cities wanted to stave off Reconstruction policies giving former
slaves the right to vote. Northern cities, counties and states tried to
avoid sending runaway slaves back to their owners under terms of the
Fugitive Slave Act during the 1850s. The federal government often backed
off when the locals made their strong feelings clear, but federal law
eventually won out in every case until it was changed.

Are there parallels between the refusal of many cities and states to comply
with the Fugitive Slave Act and the refusal of Santa Cruz County to comply
with federal laws that make even the medical use of marijuana illegal? One
parallel, of course, is that Canada's laws are the opposite of America's
today, as they were then. Slavery was illegal in Canada 150 years ago, and
medical use of marijuana is sanctioned there now.

The other parallel: As medical marijuana users and supporters see it, both
issues involve life and death. Runaway slaves knew their lives and not just
their freedom were forfeited if they were returned. Some medical marijuana
users insist pot is all that keeps them alive today, while others say they
need the weed to make life bearable in the face of AIDS, some forms of
cancer and other ailments.

"There is federal case law that says there is a fundamental constitutional
right to control the circumstances of your own death," says Gerald Uelmen,
the Santa Clara University law professor representing Santa Cruz and
several cancer patients who use marijuana. "No one claims marijuana cures
anything, but it is a palliative relieving the side effects of other
treatments on patients in this lawsuit."

So Uelmen believes he has a chance eventually to win at the Supreme Court
level and set a precedent for many other cities, counties and states across
the country.

And he thinks the case is stronger than any presented 150 years ago against
the Fugitive Slave Act. Even now, some counties refuse to capture and try
users and growers of medical marijuana, just as many northern locales
refused to capture and return fugitive slaves. But where slavery had
interstate commerce implications that may have at least legally justified
federal action, no such factor is apparent with the medical use of marijuana.

"We're talking about activity that is all very local here, and activity
that goes on with local government approval," Uelmen said.

But odds are the Santa Cruz County lawsuit will fail, as did legal efforts
to skirt enforcement of the Fugitive Slave Act. Still, as the practice
becomes more common and accepted, the likelihood increases for a change in
the law. One bill before Congress would curb federal power over medical
marijuana use in states that have voted to legalize it, as California did
with Proposition 215. Another would simply declare federal policy invalid
in those states.

Neither bill stands much chance of passage today, and with no cataclysm in
the apparent offing to change the political climate, as the Civil War did
to the Fugitive Slave Act, future prospects are uncertain at best.

Yet, the Santa Cruz lawsuit and the Arcata law both are shots across the
bow of the Bush administration.

Both actions tell federal officials there are local governments vehemently
opposed to what they are doing. With an election year coming up, it's for
sure the administration will be testing the wind to see how widespread
those feelings have become.