November 30, 2007

"It is not the job of the local police to enforce the federal drug law."

Says a California appellate court, ordering the police to give a man back his marijuana. State law did not bar his possession of marijuana, because he was authorized to use it under the Compassionate Use Act. Of course, the possession is still a crime under federal law, but let the feds come after him then. It's no business of California authorities.

ADDED: I'm not endorsing this decision. In fact, I have some doubts about it. I'm just presenting it for discussion at this point.

31 comments:

Maxine Weiss said...

Perhaps you could repost that picture of you and Dell as kids with Santa, or tell some type of childhood story.

jeff said...

Maybe if there was more of this, congress would stop federalizing everything.

tituskk said...

Fellow republicans I just saw "The Diving Bell and the Butterfly".

Run don't walk to this movie. It is one of the most beautiful, touching, artistic films I have ever seen.

If any of you like Julian Schnabel films you will love this film.

I am still incredibly emotional after seeing this film. It feels good seeing a movie and feeling the way I now feel.

Ann Althouse said...

Yeah, I want to see that. I read the book when it came out. Saw the reviews of the movie.

P. Rich said...

Two points:

1. The federal government doesn't have the manpower to "police" 50 states and thousands of cities and towns, and we probably don't want it to.

B. That said, it would seem either the states and contents thereof should be unquestionably bound by federal law (bring in the lawyers here), or states should regularly incorporate federal laws into state law through some consistent mechanism - with the option to oppose particular laws in court. That is one reason we have courts, isn't it?

What we have now, with cities and states ignoring federal laws (instituted by representatives of the people, recall), reminds me of small children rebelling against unpopular parental rules (YOU CAN'T MAKE ME!). And if you don't make them, you have anarchy.

Until the DoJ chooses to make examples of some recalcitrants, this will continue. Or maybe we could just send them to bed without any supper (i.e., federal handouts). There was this little flare-up once, now called the Civil War...

Zeb Quinn said...

That's easy. No local enforcement of fed criminal laws, no fed money to the states.

tituskk said...

I rarely go to movies because the overall experience for me is depressing (similar to what I think Althouse has mentioned in the past).

But in this movie I was immediately in the moment of the film. As well, the rest of the audience was in the moment.

This movie is a truly beautiful painting that will be with me for a long time. It is a nice feeling to know you are capable of strong emotions. Sometimes I am sure I come across as vapid but this movie was so amazing to me.

Also, the story in incredible and true. I was literally numb after I left the movie theater. As well, I could feel the emotion of the rest of the viewing audience to this movie.

I would be very surprised if this isn't the movie that wins the Academy Award this year. I have seen nothing like it before.

I implore all of you to go and not experience something incredibly emotional. I am buying the book tomorrow.

Palladian said...

"This movie is a truly beautiful painting that will be with me for a long time. "

I'm glad to hear that Schnabel has finally done on film what he has been unable to do on canvas all these years.

Prosecutorial Indiscretion said...

Might the judge be criminally liable at the federal level for aiding and abetting drug distribution or possession? I'm not a fan of the war on drugs, but it seems like giving the drugs back would be a problem both for the police and, potentially, for the judge.

Lefty John said...

I heard No Country for Old Men was really good too.

Friends of Althouse and the Revolution, my blog got visited today by somebody from usdoj.gov in D.C. today. He, she or it specifically visited my recent post about the recent Becker-Posner Blog post about tax evasion. Fortunately, it only stayed for about 19 seconds. I'm not sure how it got there. Probably nothing to be concerned about (this is a free country after all, right, with free speech?), but if They're comin for me I don't want to make it any easier on Them than I have to, so I think for now on I'll blog and post under this nom de plume. (If it rings a bell, I'm the anarchist, Georgist, lawyer, Quaker, former-Althouse-student, sometime professional poker player, who's occasionally expressed himself here quite freely on the subject of our government overlords.)

reader_iam said...

P. Rich:

W-F'N-OW.

reader_iam said...

lefty john: I'm tempted to say you're just spoofin'.

But in case you're not: I've had a closed blog for quite a while now. Killed it dead, and the hits reflect it. Still every once in a while, I get some, and some that are ... potentially interesting. Even though, theoretically, the only hits there ought to be solely mine. (There were also potentially interesting ones when it was alive, and I know there've been potentially interesting ones ... elsewhere, as well).

This is not something I sweat, amongst the things I could (and do) sweat. For myself, I've said things IRL that are far more provocative than anything I've ever written on-line ... and yet I don't worry.

I wouldn't, if you're serious, necessarily get all that bent, if all you have to go on is the dust-motes left by what is mostly likely some search-engine bot.

Bob said...

The judge must think he's John C. Calhoun.

Verso said...

Off Topic:

In the comment at Free Republic, a new right-wing fever is beginning to take hold: The crazy guy at hillary's campaign HQ in NH yesterday was a PLANT, in a conspiracy with the campaign and CNN to give her a whole day of sympathetic coverage for her health care proposal.

I kid you not.

Ann Althouse said...

P. Rich said... "it would seem either the states and contents thereof should be unquestionably bound by federal law (bring in the lawyers here), or states should regularly incorporate federal laws into state law through some consistent mechanism - with the option to oppose particular laws in court. That is one reason we have courts, isn't it?"

The states cannot be required to enforce federal law. The Supreme Court made that clear in United States v. Printz. However, state officials are not free to violate federal law.

"What we have now, with cities and states ignoring federal laws (instituted by representatives of the people, recall), reminds me of small children rebelling against unpopular parental rules (YOU CAN'T MAKE ME!). And if you don't make them, you have anarchy."

It's not anarchy. The feds are simply required to provide their own enforcement for the laws they pass (or to win the voluntary cooperation of the states and local governments). It's considered federalism and a check on overweening govt power.

But I think in this case, the state officials may be violating federal law, not simply refusing to enforce it. And state courts don't have the option to ignore federal law.

Revenant said...

Well, as a Californian who has been waiting 11 years for the state to actually start getting serious about the medical marijuana initiative we passed in 1996, let me just say... woot!

P. Rich said...

AA responded: "The states cannot be required to enforce federal law. The Supreme Court made that clear in United States v. Printz. However, state officials are not free to violate federal law."

Thanks for taking the time to respond. I am still left wondering though how laws that, say, only 75% of the states "choose" to enforce can possibly be considered effectively enforced as a nation. Oh, well.

The Drill SGT said...

The feds are simply required to provide their own enforcement for the laws they pass (or to win the voluntary cooperation of the states and local governments). It's considered federalism and a check on overweening govt power.

Well the DOJ passes out huge amounts of money in grants. Just condition it on "voluntary cooperation"

George said...

Sounds like a Cheech & Chong routine...the judge handing the baggie back to the stoners.

SGT Ted said...

I agree with Palladian. This ruling supports Federalism. The only real reason California is involved in helping in the War on (some) Drugs is because the Feds have bought them off. Now that they succeeded in destroying the local pot growers, violent Mexican drug gangs have moved in to fill the vacuum. Yay!

Paco Wové said...

L.J.-

discretion is always a good idea, but if you're really concerned, you might think about setting up a new, separate account. I was able to find your previous moniker in about 10 seconds.

dick said...

Then do the states get to choose which federal laws they enforce or is there some further restriction on them? Suppose the states decide not to enforce laws on protection of intelligence sources or witness protection programs. Do the feds then have a come-back on them for that?

former law student said...

Printz followed a line of cases that said that the feds could not conscript state and local authorities into enforcing federal law, but it did not say that state and local authorities could not enforce federal law on their own initiative. But here, a state appellate court ordered a state leo to respect state law, which it is perfectly entitled to do. The state law governs a substance that is federal contraband but not state contraband, so the state authority had no business seizing it under the state's police power (which is the only power it has). Having wrongfully seized the marijuana, the police can right the wrong only by returning it.

Lefty John said...

reader_iam and Paco Wove:

Thanks for the helpful comments. My comment about Them and They comin for me was ineed meant to be spoofish and to put a lighthearded (and even brave and indifferent) spin on my concern, but it's a concern nonetheless. I notice that most folks in the commentosphere operate under a pseudonym, and it occurred to me there might be a good reason for that (though it's not like it never occurred to me before today). On the other hand, my natural inclination or at least aspiration, IRL as well as in the blogosophere, has always been to stand up forthrightly for what I think is right, come what may in terms of personal consequences. Jesus didn't hind behind a psuedonym. It's a dilemma.

Thanks Paco for not revealing my real name, though my purpose in listing all those identifying characteristics in that earlier comment was that so commenters who knew me before would still know who I was under this pseudonym. I just didn't want to make it too easy for those who might be looking for me online for nefarious purposes, or to present an obvious invitation for them to start looking for me. And I'm encouraged by reader_iam's suggestion that the 19 second visit from the DOJ might have just been some search bot. Hell, it might have just been some underling at the DOJ who has become disillusioned with his role in an unjust enterprise and is surfing various anarchist and libertarian sites during working hours on the taxpayers' dime.

Part of the problem is that IRL I have real tax problems. It all started innocently enough. Early in the current millenium I earned a substantial chunk of money in one year from a single organization on an independent contractor basis. Not ever having worked on an independent contractor basis before I was not aware that I was supposed to make estimated tax payments and did not do so. Presumably because of disagreements with an established member of the organiation on how to conduct an operation that was very important to me and for which I was hired in the first place and in which I had invested a lot of myself (the particular operation was my idea to begin with), I found out a few weeks before the contract was supposed to be renewed for the next year that in fact it was not going to be renewed. Suddenly I found myself unemployed from January to April with no choice but to live on the savings from that year and hence no way to pay the tax bill for that year when it came due in April. I did not live "lavishly" in that year that I worked as an independent contractor (we're not talking about a huge amount of income), and certainly do not live lavishly now. Incidentally, if I had paid estimated tax payments during that year like I was supposed to, I'm not sure how I would have paid the rent and the groceries during that period of time in which I was unemployed. Does the IRS care about such predicaments? Hell no! They just want "their" money. Subsequent years have not brought a bonanza that would allow me to pay those back taxes. Indeed, efforts on my part in subsequent years to pay it by installment agreement through substantial payments every month have contributed to me being unable to pay the tax bills of subsequent years.

For anyone who has ever experienced it, this kind of sword hanging over one's head can cast a pall over one's entire life. I'm 38 and don't have kids. Think what I "owe" to the IRS and its attendant uncertainty might be contributing to my decision not to do so? You betcha.

Naturally, my predicament led me to think, "This sorry scheme can't be right." These considerations led me to the thought of Henry George, an intellectual and moral giant who was in his day one of the most famous men in America and the world. His writings, particularly Progress and Poverty, confirmed intellectually my instinctive sense that the income tax, especially as applied to poorer people, is outright theft, and also brought home to me the notion that a government-enforced property regime which denies to most people their right to a free and equal share of the earth and the earth's resources is also theft (Thomas Paine's Agrarian Justice makes the same point).

From this has come my firm conviction, which I have expressed before under my own name and which I express now, that we do not have a moral duty to pay income taxes, and that there is nothing immoral or criminal about income tax evasion or tax resistance. Indeed, in a country where our supposed system of "representation" has become (if it wasn't always) a farce, the hobby horse of lobbyists and Big Money interests which can afford to pay for outrageously expensive political campaigns, tax resistance is about the most meaningful and direct form of political participation left to us.

I'm not saying that I have or will illegally evade taxes. I'm saying that it is an option left open to me and to you by moral considerations.

Fen said...

Ann: The states cannot be required to enforce federal law.

Is this the same reason states and local jurisdictions balk at enforcing immigration law againt illegals?

And not to go off-topic, but if anyone starts up a sidebar on legalization, I've forgotten what the arguments against legalization are. Lil help? I'm on the fence.

Fen said...

Well, actually not on the fence, as mj is my recreational drug of choice, when available.

Bruce Hayden said...

I agree with Ann about the states not being forced to enforce federal law. After all, how do they decide what federal laws they have to enforce? I would suggest that just enforcing all the federal laws on the books would suck up more than the entire budgets of many law enforcement agencies and court systems, leaving them nothing to enforce their own laws - which tend to be much more relevant to their citizens than do federal laws (i.e. most criminal acts are state, not federal, crimes).

The place that I see it getting interesting though is in returning the pot. It is contraband under federal law, and the judge seems to be essentially ordering the police to violate federal law to return it.

Bruce Hayden said...

Fen,

The easy solution to enforcing any of these laws, and in particular, the immigration laws would be to make federal funding for the state, city, etc., dependent upon enforcing those laws, or at least working with the feds in enforcing such.

Bruce Hayden said...

The problem with the feds determining what federal laws to enforce is why we have prosecutorial discretion. Indeed, the DoJ routinely decides not to prosecute many federal crimes. The basic issue is that of resources - no jurisdiction any more has the resources to prosecute all the crimes that it could. So, someone has to decide what crimes a jurisdiction spends its money prosecuting. And a good argument can be made that it is quite reasonable for a local jurisdiction to spend its resources on the crimes that most affect it, such as most of what are traditionally considered crimes (i.e. murder, rape, assault, theft, etc.)

And note that this discretion is typically at two levels. First, the police use their discretion. And then, the prosecuting attorneys use theirs to determine what filed cases to prosecute.

Blake said...

The whole thing is cocked up. The Feds can threaten to withhold money from the states, but really they should get their money from the states.

I don't really have a dog in this race being anti-drug but, damn, prohibition is stupid, wasteful and destructive.

Meanwhile, I'll recommend No Country for Old Men for Coen Bros. Fans. It's similar (in tone) to Miller's Crossing, and seems a shoo-in to win another Oscar nom for cinematographer Dekins.

Don't go expecting a traditional narrative where everything gets nearly wrapped up at the end.

Smilin' Jack said...

Hee hee...if the dope is legal under Cali law then the local cops have no justification for having it. So before the cops can give it back the feds should nail them for posession with intent to distribute--that'll teach the bastards!