SpiralArchitect

Stay off the Grass
12/3/2008|MNDaily|Jake Parsley

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?

smarten-up

Hah, it took him 2 years but at least he got his bud back. Seriously though, what the fuck is that all about. They fight, and fight, and fight, but for what reason, to prove that they can steal from an innocent citizen?

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Killerchron has no weed
Killerchron has no money either
[smarten-up] that is very upsetting
[iloveunot] and no cell phone...
[Allen] No soul either

Neko150

The article never addressed whether the patient got his ganja back? *rolls eyes*

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sterbo

Neko
It's a foregone conclusion. The US Supreme Court has the final word and they directed that the marijuana be returned to it's rightful owner.
Therefore you can rest assured that Felix will soon (if he hasn't already done so) enjoy a rare moment in his life, one that many of us have probably fantasized about before.
He will get to walk into the Police Station and have the supreme pleasure of demanding his weed back and then having it handed to him by some officer with egg all over his/her face.
Wouldn't we all like to be a fly on that wall...

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dirtbomb

So, the Garden Grove Police department has decided to throw state and local statutes into the crapper, in favor of arresting people in violation of federal law?
The "Orwell was right, but twenty years off." argument is beginning to look valid.

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SoThrowd

Wow there must be something special about that bud if he wants it that bad. Paying for lawyers and court costs just made his bud way more expensive. I would just tried to save the money, instead of throwing a few gs to a lawyer, I would be buying some ganja with that money instead.

Buzzby

It's not the bud, it's the principle that motivated Mr. Kha to fight this battle. He did it not for himself, but for all medical marijuana patients who get hassled by the police. I read elsewhere that he decided that it wasn't worth claiming the three-year-old, dried-out, weak-ass bud. The win in court was all he was after.

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frolic

Yes! But I think I would want to smoke a few particles of that weed.

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Einstein

Plainsman1963

He moved out of the area and doesn't feel it worth his while to come back and claim it.
http://www.marijuana.com/drug-war-he...eized-mmj.html

sterbo

1$ says either he or his surrogate comes back to claim it now that he's actually won the case.

It's hard to imagine that anyone, having gone through what he has wouldn't jump at the opportunity to make his final gesture in the face of the PD's final bow ...
.