Alibi V.17 No.31 • July 31-Aug 6, 2008 

Neverending Stories

Marijuana Accord

A lawsuit is settled, but the use of medical cannabis remains in a legal gray area

Jeremy Eaton

The first case challenging the state's new medical marijuana policy closed with a settlement.

When Eddy County Sheriff's Department deputies seized Leonard French's marijuana plants--even though the state had given him a prescription--the ACLU sued the department. French had been diagnosed with chronic back pain. George Bach, staff attorney, says the hope was that the lawsuit would send a clear message that local law enforcement had no business seizing legally obtained medical marijuana.

As the litigation process moved forward, the ACLU learned the Eddy County Sheriff's Department was acting under orders from federal agents. Bach says this created a much messier legal scenario, because possessing marijuana is illegal under federal law. Because of the Supremacy Clause in the Constitution, federal law trumps state law. The ACLU wasn't interested in a medical marijuana case in which federal law enforcement was involved, so it sought to settle.

The agreement, finalized Monday, July 28, requires the sheriff's department to give French $5,000 for his troubles. It also mandates the department receive training on the state's medical marijuana law, as well as a couple other concessions. "We're pleased with the settlement in that the sheriff's department probably didn't know the state's law, and now they do," Bach says. Attorney William Slease, who represented the sheriff's department in the lawsuit, says his policy is to not discuss any litigation with the media.

We're pleased with the settlement in that the sheriff's department probably didn't know the state's law, and now they do.

ACLU Staff Attorney George Bach

Bach says if his client decides to continue to use medical marijuana, he could still face federal prosecution for doing so. Such a predicament underscores the legal gray area medical marijuana occupies in New Mexico. Prescriptive use is legal under a state law passed in 2007 though still illegal under federal law.

Jim Burleson, the director of the New Mexico Sheriffs’ and Police Association, blames state legislators for passing a law he says second guesses the federal government. [" Unkind Bud," Feb. 28-March 5]. Burleson says for the last 200 years, states have been allowed to pass laws that are as stringent or more stringent than federal laws. The problem, he says, comes when they pass laws that are less stringent.

ACLU New Mexico Executive Director Peter Simonson says the state passed a sensible law, and the federal government should be responsible for resolving the contradiction. "The state should have the right to provide what is needed to take care of the health of its citizens," Simonson says. "They should be allowed to provide the medicine that gives relief to people with unresolvable medical ailments."

Rather than being chastised for their efforts, Simonson says state lawmakers and Gov. Bill Richardson should be applauded for making medical marijuana available to New Mexicans. "The governor has crafted a progressive, humane law," Simonson says. "It should stand as a model for other states to follow."