Wednesday, April 13, 2016

Medical Marijuana Providers Score Major Victory in Federal Court

By David Downs
Wed, Apr 13, 2016 at 10:54 AM

click to enlarge Lynnette Shaw
  • Lynnette Shaw
The federal war on legal medical marijuana providers is paused for now, thanks to a major legal victory in California.

Lynnette Shaw, who is one of California’s oldest dispensary operators prevailed Wednesday in her bid to overturn a nineteen year-old civil injunction barring her from the cannabis trade for life. Shaw won using the argument that Congressional law now forbids the Department of Justice from spending a single cent interfering with state-legal medical cannabis businesses.

In October, a District Judge sided with Shaw and called the government’s argument "tortured." The Department of Justice moved to appeal the decision in March. But the DOJ could see that they were losing the appeal, so on Wednesday, US Court of Appeals for the Ninth Circuit granted the DOJ’s own motion to dismiss the case. Rather than continuing to pursue Shaw and potentially setting an even bigger legal precedent, the DOJ gave up the case. Shaw is now free to run a dispensary.

Licensed dispensary operators, edibles makers, and growers in the twenty-three states with medical pot laws can breathe easier today, legal experts said.

“This to me, I believe, is the end of the medical marijuana war,” Shaw said. “We are ending that war — starting now.”

"It’s hard to overstate the significance of this ruling," said Alex Zavell, a California medical marijuana regulatory expert with the Oakland law firm of Robert Raich.

In 2014, the US Congress de-funded the DOJ’s war on medical marijuana through the Rohrabacher-Farr Amendment. The Amendment was renewed with even bigger Congressional support in 2015. The DOJ had hoped the courts would narrowly interpret the Amendment. They have not.

"[The case] means that so long as the Rohrabacher-Farr amendment remains in effect, the Department of Justice will be barred from expending funds to target medical cannabis businesses that operate in compliance with state law," said Zavell.

"This is a victory for everybody," said Shaw.

The win is also very symbolic. Shaw’s injunction nineteen years ago was part of the first wave of federal intimidation of state-legal cannabis patients after California legalized medical marijuana in 1996. Since then, twenty-two other states have followed.

Shaw ran arguably the first lawful dispensary in California, with a permit from the city of Fairfax. In 2011, as part of the most recent federal crackdown, the DOJ used the old injunction to close her dispensary, the Marin Alliance of Medical Marijuana. The DOJ threatened to seize the property of Shaw's landlord.

The Obama Administration has spent hundreds of millions of dollars on similar federal interference operations in states with legal pot regimes. Governor Jerry Brown has criticized the operations of these "federal gendarmes" in California.

Shaw's legal team was led by attorney Greg Anton. Anton motioned to sue the government for monetary damages related to frivolous lawsuits, if the DOJ used the same failed argument in the Ninth Circuit that it used in District Court. As the April 19th deadline to file such an argument neared, the DOJ kept stalling, and then motioned to dismiss, said Shaw.

"All they had was the same argument, 'We don’t have to obey Congress. We don’t have to obey the constitution'," said Shaw.

Congressman Dana Rohrabacher also leaned on the DOJ, she said. Rohrabacher sent the Inspector General evidence that the DOJ was breaking federal law in the Shaw case.

"If they come after me, they can be arrested with a felony, from [Attorney General] Loretta Lynch on down," Shaw said.

Correction: the original version of this article misattributed the following quote to Lynette Shaw: “[The case] means that so long as the Rohrabacher-Farr amendment remains in effect, the Department of Justice will be barred from expending funds to target medical cannabis businesses that operate in compliance with state law." The quote is attributed to Alex Zavell. The story also misidentified Zavell as a lawyer. Zavell is not an attorney.

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