The Oakland marijuana ordinance

Innovative — or illegal — things are happening in the city of Oakland.

In July 2010, Oakland passed an ordinance permitting “industrial-scale” growing of marijuana.

Permits were supposed to issue in January of 2011.

Then the letter came from the United States Attorney’s Office.

On February 1, 2011, Melinda Haag, the U.S. Attorney for the Northern District of California, sent a letter to the City of Oakland informing it that, “Individuals who elect to operate ‘industrial cannabis cultivation and manufacturing facilities’ will be doing so in violation of federal law.”

Supposedly, members of the city council are attempting to re-write the ordinance to make it more palatable to federal law enforcement.

This might be an impossible task.

While many states have legalized medical marijuana, marijuana possession, transportation and distribution remains a federal offense.

In Gonzales v. Raich, the United States Supreme Court affirmed the power of Congress to criminalize the cultivation of medical marijuana.

In addition, the California medical marijuana laws are notoriously convoluted.

The type of large-scale industrial production of marijuana may not be permissible under state law.

In People v. Mensch, the California Supreme Court ruled that “a defendant whose caregiving consisted principally of supplying marijuana and instructing on its use, and who otherwise only sporadically took some patients to medical appointments, cannot qualify as a primary caregiver.”

In other words, businesses that buy and sell marijuana — not to mention at an industrial scale — cannot claim to be caregivers under California law.

The City of Oakland may still go ahead with its plans to industrially cultivate marijuana but it risks confrontation with federal authorities if it does so.

In 2009, Attorney General Eric Holder told United States Attorneys to focus federal resources on matters other than medical marijuana.

But Oakland’s ordinance may go too far for the feds.

Oakland would have a better legal leg to stand on if the medical marijuana laws more clearly supported its position.

In the absence of such clarity, Oakland risks a potentially violent crackdown from Washington.

The tension between state and federal law related to drugs is real and simmering.  We are probably only a few years away before a state — such as California — legalizes non-medical possession of marijuana.

When that happens, the federal government will have to explain more clearly why it believes it has the authority (political, legal or otherwise) to override a state’s drug laws.

But until state laws are more clearly in Oakland’s favor, it may want to lay low for the time being.