California Counties Can Keep Banning Marijuana

OFF THE WIRE
By TIM HULL
(CN) - Though it may be legal in California and other states, medical marijuana use is not protected by the federal Americans with Disabilities Act, the 9th Circuit ruled Monday, affirming pot-dispensary bans in two Orange County cities.
     Costa Mesa and Lake Forest, Calif., have been trying to close down marijuana dispensaries within their borders since at least 2005. Costa Mesa has an ordinance that prohibits dispensaries, and both cities have raided medical marijuana collectives and filed public nuisance actions in state court to close them.
     Medical marijuana users Marla James, Wayne Washington, James Armantrout and Charles Dejong filed a federal lawsuit in 2010, claiming the cities' bans on medical pot denied medication to patients in violation of the Americans with Disabilities Act (ADA).
     Presiding U.S. District Judge Andrew Guilford in Santa Ana ruled for the cities and refused to enjoin the law in 2010. Guilford reasoned that the ADA does not protect marijuana use, even when a physician who is following state law supervises such use.
     A divided panel of the 9th Circuit affirmed Monday from Pasadena.
     "We recognize that the plaintiffs are gravely ill, and that their request for ADA relief implicates not only their right to live comfortably, but also their basic human dignity," Judge Raymond Fisher wrote for the majority. "We also acknowledge that California has embraced marijuana as an effective treatment for individuals like the plaintiffs who face debilitating pain. Congress has made clear, however, that the ADA defines 'illegal drug use' by reference to federal, rather than state, law, and federal law does not authorize the plaintiffs' medical marijuana use. We therefore necessarily conclude that the plaintiffs' medical marijuana use is not protected by the ADA."    
     Costa Mesa's attorney, James Touchstone with Jones & Meyer in Fullerton, Calif., called the ruling "a complete and total victory" for the city.
     Touchstone said that the opinion stops short of making a definitive ruling on the longtime battle between federal and state laws regarding medical marijuana, but it does represent the first ruling by an appellate court on medical marijuana use and the ADA.
     "It indicates that a person who is currently using drugs in an illegal manner under federal law is not disabled," Touchstone told Courthouse News.
     While the ADA generally prohibits cities from denying health benefits to people with qualified disabilities, the court said that patients in this case used illegal drugs as defined by the federal Controlled Substances Act.
     The plaintiffs had argued that marijuana use in a state where it is legal falls under the ADA's exception for "use of a drug taken under supervision by a licensed health care professional," but the panel disagreed.
     Acceptance of this argument would "allow a doctor to recommend the use of any controlled substance - including cocaine or heroin - and thereby enable the drug user to avoid the ADA's illegal drug exclusion," Fisher wrote.
     The panel also said there is "nothing in the legislative history to suggest that Congress intended to extend ADA protection to state-authorized, but federally prohibited, uses of marijuana falling outside this regulatory framework."
     Judge Marsha Berzon dissented from her colleagues, arguing that the statute's ambiguity precludes a ruling "on the broad ground that medical marijuana users are not protected by the ADA in any circumstance."
     "Looking at the language of § 12210(d)(1) alone, I would come out where the majority does - concluding that the statute is ambiguous," Berzon wrote. "But unlike the majority, I would not declare a near-draw. Instead, looking at the words alone, I would conclude that the plaintiffs have much the better reading, but not by enough to be comfortable that their interpretation is surely correct. Turning then to the legislative history, I would again declare the plaintiffs the winner, this time sufficiently, when combined with the language considerations, to adopt their interpretation, absent some very good reason otherwise. And I am decidedly not convinced that the majority's facile 'trump' via the Controlled Substances Act (CSA) works, because, among other reasons, the supposed tension relied upon does not exist."
     Matthew Pappas, of Mission Viejo, Calif., who represented the plaintiffs did not return a request for comment.