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August 2007
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The responsibility of states to their people

When New Mexico passed their medical marijuana law that required the state to supply patients with marijuana, that turned some heads — surely this was an interesting end run around the approach of busting medical marijuana dispensaries that the DEA uses in California. How would the DEA bust a state?
The problem, unfortunately, is that folks figured out that the DEA might just go after the individual state employees who are complying with state law and, in the process, violating federal law.
So the state of New Mexico has decided not to comply with state law [thanks, Wayne] so as not to force state employees to be put at risk. And to an extent, I can understand the stated sentiment (although it certainly would be an interesting court case).
What I can’t help wondering, however, is how hard the state is trying. Have they merely come up with an excuse to give up? Don’t they have a responsibility to continue to attempt to find a way to make state law work?
And this got me thinking about a fascinating post by Alex at Drug Law Blog: Daily News on LAPD Involvement in Dispensary Raids. The question there is whether members of the LAPD are actually helping the DEA bust dispensaries that are legal under state law, and what that says about the LAPD. They claim to just be there to maintain order, but what about their responsibility to the law?
I’m not saying that the LAPD should defy the DEA. No gunfights in the street between state and federal cops just yet. Federal law supersedes state law. But that doesn’t mean that the LAPD needs to… assist.
As a Superior Court Judge recently noted:

It is up to the federal government to enforce its laws. Indeed, the Tenth Amendment to the United States Constitution prohibits the federal government from impressing ‘into its service — and at no cost to itself — the police officers of the 50 States.'”

So what should the LAPD do? If they really believed in their responsibility to the people, the law, and the state, then they would protect those all the way up to the point where federal law specifically took over, and then merely step out of the way. I would position police officers to protect marijuana dispensaries in the state, with instructions to step aside for the DEA only if and when the police and California attorney general were completely satisfied with the legal paperwork spelling out the DEA’s jurisdiction in that particular raid and the specific provisions of federal law that trumped state law (and the DEA might have to wait for an hour or two while the proper state officials were brought in to inspect such documents).
Now that would be something to see. And the people of California should demand that of their police departments.

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