Published   August 2, 2012

U.S. Attorney Shouldn’t Be Threatening to Prosecute City Employees

CA ACLU Says Duffy Should Retract Threat to Prosecute City Employees over Medical Marijuana Ballot Initiative

The San Diego U.S. Attorney is treading dangerous legal ground with a legal opinion that seems to be threatening Del Mar city employees with prosecution if they comply with an ordinance on medical marijuana up for a vote in November.  In a letter sent today, the ACLU of California called on Laura Duffy, U.S. Attorney for the Southern District of California, to assure voters that the federal government will not prosecute city employees for carrying out their duties if the local initiative passes in November.

The Compassionate Use Dispensary Act and Taxation Ordinance is a citizen-drafted initiative which seeks to ensure safe access to medical cannabis in the City of Del Mar for qualified patients, in compliance with California’s Compassionate Use Act of 1996 and Medical Marijuana Program Act of 2003.  The Ordinance would impose additional restrictions on medical marijuana-related activities to ensure public safety.  The ordinance would require modest cooperation from city employees, largely limited to the issuing of permits for buildings of compassionate use dispensaries.

“While the federal government may enforce federal law, it has no business attempting to interfere with local legislative decisions,” said David Loy, legal director of the San Diego ACLU.  The letter expressed concerns about Duffy’s recent threat of litigation to any city employee who followed the mandate of a ballot initiative.

Inaccurately relying on the Controlled Substance Act (CSA), Duffy sent a letter on July 18, 2012, to Del Mar’s city attorney referring to potential liability for city employees who conducted  activities mandated by the ordinance if it passes.  The letter states that both state and city employees would not be “immune from liability” under the CSA.

“This is just the latest in a series of misleading and inappropriate federal threats to state and local government officials across California and elsewhere,” said Allen Hopper, director of the ACLU of California’s Criminal Justice and Drug Policy Project. “Local and state officials seeking to responsibly regulate medical marijuana are not violating federal law and should never have to fear prosecution.”

The ACLU letter argues that compliance with the ordinance cannot legitimately expose city employees to liability under the CSA. The courts have expressly rejected the notion that employees are subject to any aiding and abetting or conspiracy theory on which the threatened liability could be based.  Because of this legal precedent, the mere act of issuing a permit in compliance with the ordinance would not make Del Mar city employees vulnerable to prosecution.

ACLU representatives are seeking to meet with the U.S. Attorney to discuss the serious issues raised by this case.