California law allows for the medical use of marijuana for people "seriously ill," who are deemed appropriate for its medical use and have the recommendation of a physician. This San Jose criminal defense attorney has written extensively on the subject on this blog. However, federal law stands strictly in opposition to California's Compassionate Use, which has created an ongoing battle between the two jurisdictions. The Feds have taken a stern position on marijuana, closing down cannabis co-ops and collectives and arresting people who would otherwise be protected under California law. (When there is a conflict, federal law trumps state law). San Jose and Morgan Hill have seen such closures and arrests in the last few years.
Here in California, four disabled people qualified for and obtained valid permission under California law to use medical marijuana (see Cal. Health & Safety Code §11362.5). The patients purchased marijuana from local collectives in their respective cities of Costa Mesa and Lake Forest. In 2005 both cities adopted policies to exclude cannabis clubs, co-ops and collectives within city-limits, as they were deemed a "nuisance." These clubs continued to operate despite the local ordinances banning them and were eventually raided by local police and some members detained and arrested.
With little recourse to obtain medical marijuana, the patients brought an action in federal district court, alleging a violation of Title II of the American with Disabilities Act or ADA. (See 42 U.S.C. § 12132). Specifically, the complaint alleged that the patients/plaintiffs qualified as disabled under the ADA and that they were wrongfully discriminated against by the cities' ban on medical marijuana. Title II of the ADA says in part that public entities "must not intentionally or on a disparate impact basis discriminate against the disabled individual's meaningful access to public services." The complaint further requested an order requiring the cities to "cease and desist any further action to remove existing marijuana collectives organized under the laws of California."
The district court denied the patients/ plaintiffs request for injunctive relief on the basis that federal law does not authorize medical marijuana, and thus cannot protect against discrimination on the basis of marijuana use. The court further found that the term "individual with a disability" does not encompass a person illegally using a drug under federal law. (Some otherwise illegal drugs may be used under the ADA where specified by law. This is sometimes called the "supervised use law," which does not include cannabis.)
The Ninth Circuit Court of Appeals, based in San Francisco, affirmed the district court's decision. The court found that accepting the patients/ plaintiffs' position would be "a substantial departure from  accepted federal policy by extending federal protections to a federally prohibited, but state-authorized , medical use of marijuana. That would be extraordinary departure from policy and one that we would have expected Congress to take explicitly." Thus the court rejected the plaintiffs' argument that marijuana implicitly comes under the "supervised use law."
In the end the Ninth Circuit concluded, that although the patients/ plaintiffs were "seriously ill" and unquestioningly come under California's Medical Marijuana provisions, "Congress has made clear," that the Americans with Disability Act defines illegal drugs and drug use under federal law, and federal law makes no exceptions for marijuana. The real short of it is, the ADA does not protect medical marijuana use or possession.
This decision comes on the heels of a series of cases rejecting medical marijuana under any federal scheme. The federal courts have ruled that non-commercial cultivation of marijuana does come within the purview of the interstate commerce clause and have rejected medical necessity as a defense to the use of medical marijuana. To see the text of the Ninth Circuit opinion, click here.
Source: James v. City of Costa Mesa (2012) 2012 U.S. App. Lexis 10168. Also see Mercury News article "San Francisco: Court rejects Disabled Citizen's Bid to Obtain Medical Marijuana," Bay Area News Service, May 21, 2012.