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Lit_Match

Official Downplays Threat of Prosecution
07-27-07|Press-Enterprise|By David Olson

President Bush's nominee to become U.S. attorney for the Inland and Los Angeles areas appeared to take the federal government's campaign against medical marijuana to a new level early this year.

Tom O'Brien, currently chief of the criminal division for the U.S. attorney's office in Los Angeles, told members of the Coachella Valley Association of Governments on Jan. 8 that government officials could be prosecuted for allowing medical-marijuana dispensaries to operate.

Marijuana is legal in California to treat certain medical conditions.

It is illegal for all uses under federal law.

Palm Springs is considering a proposal to allow medical-marijuana patients to grow the plant at city-approved collectives.

Palm Springs City Councilman Mike McCulloch asked O'Brien whether members of city councils are "exposed to risk of arrest or other prosecution" if they allow dispensaries.

According to a tape recording of the meeting, O'Brien answered, "Anyone who aids or abets the commission of a crime -- in this I believe you're hypothetical -- in terms of someone who is distributing marijuana, anyone who assists in that process is technically liable for prosecution."

Thom Mrozek, spokesman for the U.S. attorney's office in Los Angeles, insisted Thursday that O'Brien never directly addressed the issue of liability.

"In our interpretation, what he addressed there was saying like in some theoretical or possible world, that could happen, but I'm not going to address whether that is in the realm of possibility," he said.

McCulloch called O'Brien's comments "intimidating."

"I interpreted that comment that as far as the federal government is concerned, city council members shouldn't approve marijuana dispensaries or you will be prosecuted for aiding and abetting a criminal action," McCulloch said.

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Buzzby

State and local law enforcement organizations are not required to enforce federal laws. O'Brien seems to be saying that state and local politicians could be held criminally liable for neglecting to enforce federal laws.

If the feds suddenly prohibited, say, pineapples, would the town council be criminally liable for not shutting down local supermarkets?

In the 2004 Gonzales v. Raich decision, the USSC ruled that federal law enforcement could prosecute federal crimes, even if the "crime" wasn't a crime at the state level. The court specifically did not rule that state medical marijuana laws are unconstitutional. It's a federal crime to sell marijuana. It's not a federal crime to not stop people from selling marijuana. If it were, we'd all be guilty. I haven't stopped people from robbing banks, kidnapping children, or blowing up buildings, either.

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