L.E.A.P. LAWSUIT AGAINST SAN DIEGO TO BLOCK NEW DISPENSARY ORDINANCE APPEARS UNLIKELY. . . BUT

By Leo E. Laurence, J.D.; Law Enforcement Against Prohibition

When you wear a badge and carry a weapon 24/7, you look at the world differently. As a sworn officer, you ARE different! Ordinary events like going to a private party with friends can present serious ethical problems for a law enforcement officer; particularly if someone, a medical marijuana patient with the right to do it, lights up a joint, which for non-patients would be unlawful.

At nearly every party these days, somebody undoubtedly lights up a joint, especially among younger people. Even if that guest/smoker is a patient with a valid medical marijuana card, an officer who is another guest just isn’t going to “check out” other guests. Frequently, when somebody lights up a bowl of grass at a private party, a law enforcement officer may handle the dilemma by simply being gracious with their host and quietly leaving the party.

“It can be a real dilemma in my private life,” says John T., a veteran and local active duty officer. “Sometimes a host will let me know ahead of time that there will be patients smoking joints at their party. Then, I can tactfully decline the invitation and avoid the ethical problems the party may throw at me if someone lights up.”

For those who don’t see the ethical problems (probably most officers), they will probably take a few hits off a joint themselves if it’s not revealed that they are in law enforcement.

L.E.A.P is an international organization of active duty and former law enforcement officers, prosecutors and judges with headquarters in Massachusetts and Washington, D.C.

This is an attempt to help my readers get inside the head of some law enforcement officers within L.E.A.P. who openly support medical marijuana.

“My sergeant knows I support medical marijuana, so he avoids giving me assignments where the issue may come up,” explained another active duty officer in an exclusive interview for NUG Magazine.

During an appearance at a recent monthly meeting of the San Diego chapter of Americans for Safe Access (A.S.A.), I was unexpectedly approached by people who thanked L.E.A.P. for bringing the prestige of law enforcement to the medical marijuana campaign.

Being treated like a hero at that recent A.S.A. meeting was a new experience for me.

L.E.A.P. Lawsuit Considered

San Diego, like many other cities in Southern California, has a new city ordinance that is an unlawful de facto ban on medical marijuana dispensaries. Unfortunately, a shotgun approach is being used by some local cannabis leaders to fight this new ordinance, which includes a proposed and very costly referendum.

To get the new city ordinance before the court, I asked the L.E.A.P. Board of Directors to approve filing for injunctive relief in the San Diego Superior Court. That would begin with a temporary restraining order (TRO) from the court and against the city to prohibit implementation of the ordinance until the legal challenges are fully heard by the court.

Some legal issues involved include the alleged unconstitutionality of any municipal government enacting local laws that prohibit the enforcement of state law. A city has no jurisdiction to do so. It’s a violation of both federal and state constitutions. Similarly, a state has no jurisdiction to pass laws that would block the implementation of federal laws.

Another major problem with the new city ordinance is that the wording of the ordinance is very vague. Procedural rules of statutory construction used by appellate courts when reviewing the constitutionality of a statute require that a law cannot be vague. To pass constitutional muster, a law must make it clear to the public what conduct is allowed and which is prohibited. A law that is vague is unconstitutional and cannot be implemented; for example, the new ordinance says a medical marijuana dispensary cannot operate within 600 feet of a church…But, what is a church? Can someone simply put a cross on any storefront and call it a church, thereby prohibiting the operation of a nearby dispensary? The ordinance doesn’t explain or define those important terms.

There are numerous other legal issues that can be litigated in a civil, injunctive lawsuit against the city to prohibit implementation of the new city ordinance, and the lawyers will dig them up.

At press time, the Executive Director of L.E.A.P., Major Neill Franklin, unfortunately declined my request that L.E.A.P. authorize an injunctive lawsuit, saying in an email that “this is not something that L.E.A.P. does. L.E.A.P. must remain focused on its priorities as an educational entity.”    Major Franklin urged that A.S.A. “take on this type of charge.” However, A.S.A. seems to be going in different directions.

Major Franklin said in another email that he understands the dilemma that patients are facing in Southern California, particularly San Diego. He explained that L.E.A.P. has limited funds and needs to focus on certain tasks, such as our speakers bureau, op-eds, and supporting other drug policy organizations that lack a law enforcement perspective.

“Since funding is scarce for us, I must choose my battles wisely,” Major Neill explained. “What I am willing to do is request support from NORML and MPP. I can call the heads of both organizations to get something going,” he added with a touch of optimism. Major Franklin can be reached at neill@leap.cc, so express your personal support!

Meanwhile, Shaleen Title, Esq., the Speakers Bureau Director of L.E.A.P., optimistically reported in a recent email that she “talked with Nate from Lawmen Protecting Patients (L.P.P.) and he is very interested.” The L.P.P. website is www.lawmenpro.org.

People in the medical marijuana community are justifiably angry and very frustrated. Dispensary owners are reporting to me that many of their regular patients/customers are calling them to ask if they are being forced to close. Some patients are beginning to panic because their medications may soon be stopped by the city’s new ordinance.

Finding a Lawyer

Finding a good attorney can be perplexing for anyone, but the County Bar Association has an effective lawyer referral service that can be useful.    Many of the attorneys who are currently working on marijuana cases are criminal lawyers, and a lawsuit to challenge the city’s new ordinance would be a civil lawsuit. There’s a world of difference.

The lawyer(s) needed to file an injunctive lawsuit need(s) experience in civil law and working with TRO cases. The lawsuit will not try to establish the lawfulness of medical marijuana because it is already state law.

A.S.A. Meeting

One of the leading community organizations in the medical marijuana community is the San Diego chapter of Americans for Safe Access. Eugene Davidovich is the San Diego Area Liaison of the local A.S.A. chapter, and at the May meeting, his presentation reflected the grassroots anger that is common in the community today as a result of the city council’s unreasonable actions.
There was a strong, sustained, angry attack on some of the recent law enforcement raids. In response, I urged the meeting not to condemn all law enforcement officers for the actions of the few who conducted those unreasonable raids.

Some of the hardest-working activists regularly attend the A.S.A. monthly meetings and make up the core of grassroots supporters who can be found at every event or meeting involving medical marijuana.

In addition to San Diego’s recent council action, medical marijuana issues are heating up in cities from Imperial Beach to Oceanside. “The next major ground efforts” by A.S.A. will be in El Cajon and La Mesa in the east county, Davidovich reported.

On behalf of L.E.A.P., I attend most of those council sessions to add law enforcement support to the campaign. It really annoys me when I hear the top brass (police chiefs and sheriffs) claim that dispensaries increase crime. Actually, the opposite is true, but the chiefs need to protect their shrinking budgets in this failing war on crime.

Davidovich and his organization are also producing Raid Preparedness Training sessions to help patients and dispensary owners. The training goes over the rights of medical cannabis patients and how to deal with different levels of police encounters. However, raids on patients in their homes are highly unlikely, but targeting dispensaries is more possible.

A.S.A. meetings are held on the 2nd Tuesday of every month. The June session will be on June 14th at 7 p.m. at the La Jolla Brew House, 7536 Fay Avenue.

Active duty and former law enforcement officers are urged to call me at (619) 757-4909 to confidentially get involved with supporting L.E.A.P. locally. Email is leopowerhere@msn.com

Steve

Author: Steve

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