BLOGGER HTML TEMPLATE AS OF 4/15/16 BEFORE REDIRECTION TO WORDPRESS New Amsterdam Psychedelic Law Blog: December 2012

Sunday, December 30, 2012

Washington State city begins acting in response to I-502

As discussed with increasing frequency on this blog, land use continues to be a high-activity area in cannabis law. In Washington State, the city of Everett recently declared cannabis gardens to be a nuisance, allowing local government to shut down any such operation as a per se violation of local law.

An action to enjoin a "public nuisance" - i.e. activity that impairs the safety or health of a community - is a primary land use litigation tool which local governments use to enforce local bans against supply-side operations in the cannabis market. The question that is being litigated is whether state laws permitting medical use of cannabis "preempt," i.e. "override," local laws, leaving the local governments unable to ban something permitted by a higher level of law. This issue will be tested in each state that enacts laws permitting some form of a legal cannabis market to whatever degree - probably many times in each state as multiple cases from lower level courts begin heading to the appellate courts, as is happening in California.

Wednesday, December 26, 2012

Land use is the frontline

I previously wrote about action by a local government in New Jersey to ban dispensaries and land use litigation in California, specifically the Pack v Long Beach case. There have been many more legal developments in New Jersey, California and elsewhere with regard to the authority of local governments to ban dispensaries even when they are legal under state law. Several decisions including the Ter Beek v City of Wyoming decision from Michigan (my thanks to Adam Scavone for bringing this decision to my attention) and the City of Riverside v Inland Empire's Patient Health and Wellness Center decision from California have held that federal law does not preempt state law permitting the operation of cannabis dispensaries. However, in Riverside a California appellate court held that state law does not preempt local zoning regulations that ban dispensaries under the guise of "regulation." This decision is under review by the California Supreme Court along with several other decisions on the question of state preemption of local law.

Recent developments in Massachusetts confirm further my position that the frontline of cannabis law is at the local level, not the conflict between federal and state law since, in practice, the operation of a dispensary is subject to authorization by local government. A recent article about the new Massachusetts law demonstrates that the classic next step after enactment of a state medical cannabis law is action by localities to ban dispensaries or at least declare moratoria pending "further study" of the issue.

The takeaway from the foregoing is that persons seeking to legalize the supply side of cannabis in their localities should take action to cultivate their local governments in anticipation of favorable state laws and/or be ready to brief the inevitable legal argument as to whether state law preempts local law with regard to dispensaries.

Cannabis prohibition was always a mistake and now there is a lot of explaining to do

This is a short post, not so much a legal analysis but an attempt to do a "big picture" moment wherein one puts the situation in context.

If there is a legal aspect, it is called "shifting the burden."  The burden was once upon the proponents of cannabis normalization to justify their position.  It should have been the other way around: now the time has finally come for proponents of cannabis prohibition to justify their position.

Cannabis prohibition from the beginning was always a mistake: a foolish, false and massively destructive policy.

It was a mistake when the federal government prohibited cannabis on the basis of reefer madness in 1937, it was a mistake in 1972 when the Nixon Administration rejected the proposal of the Shafer Commission, it was a mistake in 1979-1980 when the "drug prevention movement" AKA the "parents movement" took over the federal government and made eradication of all cannabis the foundation of drug control policy, and it was a mistake in 1988 when the DEA administrator rejected the conclusion of the DEA Administrative Law Judge to reschedule.

The arguments now over whether there has been sufficient research to establish a medical use, whether anyone should allow medical use without FDA approval, whether federal law preempts state law or whether state law preempts local law all dance around the big picture - the time has come for the forces of prohibition to justify the last 75 years of prohibiting the plant and all human enterprise associated with it.

Tuesday, December 4, 2012

All the President's Men

My colleague Buford Terrell recently posted at his blog, Marijuana Musings and Drug Law Diversions, about the federal government's options in response to the Colorado and Washington legalization votes.