Medical marijuana crackdown in California illegal because it's not happening in Colorado?

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Yesterday, attorneys in California asked a court to issue a temporary restraining order to stop federal raids on pot dispensaries there.

This request makes a slew of legal arguments, one of which pivots on the lack of such federal actions in Colorado -- at least thus far. But as sympathetic as he is to the cause, attorney and marijuana advocate Brian Vicente doesn't hold out much hope that it will succeed.

As noted in the Washington Post article linked above, "The California lawsuits argue that the federal government is also violating the 14th Amendment of the Constitution requiring equal protection under the law because medical marijuana operations in Colorado are not facing a similar crackdown."

Vicente's response? "This is definitely a novel argument they're bringing forth -- but I think why this is perhaps not a winning argument is because different federal agencies and different federal offices have different priorities and can enforce them as they see fit. Colorado has had a medical marijuana law for eleven years at this point, and the federal government hasn't taken action to arrest every sick patient they can -- nor have they done that in California. But to say they're doing one thing in one place and ramping up enforcement in another doesn't necessarily indicate a 14th Amendment violation.

"I think the attorneys in California are throwing whatever arguments they can on the table in the hope that the federal government will back off," he says. "But I don't necessarily think this is one of the stronger ones."

He sees more promise in the claim that the raids represent an unfair change in policy in the wake of a 2009 memo by Deputy Attorney General David Ogden, which encouraged U.S. Attorneys not to use scarce law enforcement resources to go after MMJ operations following state law.

"I think that's a more interesting and perhaps more viable argument," he maintains. "You have a situation where the government has essentially given a green light to certain activities, whether it's providing medical marijuana or being a medical marijuana patient, and then they kind of flip their enforcement priorities and go back on that policy. I think there's a degree of detrimental reliance, where people invest their time and savings into getting these shops off the ground because the government lets them know it's okay but then suddenly backs out." Of course, there's a simpler way to overcome enforcement distinctions from state to state: Legalize marijuana for adult use across the board. Vicente believes such a course is inevitable "within a matter of years and, more broadly, in a matter of decades in our country. I think everyone realizes that's a fact, so what we're seeing are these kinds of dying gasps by the federal government as they attempt to shut down marijuana, which they should realize is an impossible goal.

"I think Colorado is going to lead the way next November, when we regulate marijuana for adult use" via the Regulate Marijuana Like Alcohol Act of 2012, for which Vicente is among the primary proponents. "Once that system has played out and we've seen it work in the same way medical marijuana has worked in Colorado, I think it will be an example for other states."

Regarding the petition drive for the act, Vicente estimates that "we're at about 108,000 signatures" -- a sizable increase in the last week or so, and within shouting distance of the goal of 145,000. "We're definitely on schedule to get there," he believes, "and we're hoping for a mid- to late-December turn-in. After that, there'll be a curing period, but we want to turn in almost double the amount of signatures required" -- around 86,000 -- "and be quickly certified so we can move into the campaign phase."

What impact does he feel heavy-handed federal actions in California -- detailed in the recent Village Voice Media feature "Obama's War on Weed: In strange about-face, pres tries to hack med. marijuana off at knees" -- will have on the push for adult regulation in Colorado?

"I think it helps us," Vicente says. "It shows how sort of archaic the federal government's view is on marijuana. They're still wasting taxpayer dollars going after patients and providers -- chasing people down for a drug that's less harmful than alcohol. That opens up room for Colorado to lead the way on this issue."

He sees efforts to limit medical marijuana in various communities here as having the same effect. As an example, he mentions the MMJ-retail ban approved in Fort Collins last week. Dispensaries there can remain open for ninety days after the election results' certification, and "at least half the dispensaries there now have our petition," he says. "They were sort of holding off before, but now they're ready to fight back any way they can -- including soliciting their customers to get behind this campaign in the post-ban climate."

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More from our Marijuana archive: "Medical marijuana: Jared Polis disappointed in Justice Dept. memo but doubts sky is falling."

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