cannabisnews.com: US Judge Rules Giauque's Pot Off-Limits To Feds US Judge Rules Giauque's Pot Off-Limits To Feds Posted by CN Staff on September 03, 2003 at 18:58:38 PT By Pamela A. MacLean, Daily Journal Staff Writer Source: Daily Journal San Francisco -- For the first time, a federal judge has made it clear that local sheriffs can't run to federal court to circumvent a state judge's order that they return seized medical marijuana to its owner. In a groundbreaking decision, Chief U.S. District Judge Marilyn Hall Patel ruled Friday that federal courts have no authority to authorize seizure of pot controlled by a Humboldt County sheriff after a state judge ordered the reluctant sheriff to return the ounce of pot to its owner, Christopher Giauque. "This court is without subject matter jurisdiction to revisit application of the Controlled Substances Act to precisely the same factual situation addressed and adjudicated by the state court," Patel concluded. In the Matter of Seizure of Approximately 28 Grams of Marijuana, "Federal authorities may not muscle in on state proceedings in order to gain control over property seized by state police," Patel wrote. "This is a landmark," said Dale Gieringer, the California coordinator of the National Organization for the Reform of Marijuana Laws. "This is the first time any federal court has ever ordered the return of marijuana" in a medical marijuana case, he said. Federal authorities could appeal her order to the 9th U.S. Circuit Court of Appeals. Matt Jacobs, spokesman for the San Francisco U.S. attorney's office, declined comment on the case and Justice Department attorney Mark Quinlivan did not return a call for comment. Quinlivan flew to California from Washington to argue in support of the seizure of Giauque's ounce. More than a half-dozen superior court judges around California and at least one Oregon judge have ordered the return to the patients of medical marijuana seized by police. Similar state cases have popped up in Shasta, Sutter, San Benito, San Luis Obispo, Mendocino and Sonoma counties, Gieringer said. In Sonoma, a judge ordered five pounds of marijuana returned, according to Gieringer. "This is a major victory for medical marijuana patients and for state's rights," said Bryce Kenny of Arcata, Giauque's attorney. In a strange twist, Kenny said, his client is not around to celebrate the victory. Giauque disappeared on a remote mountain road two weeks ago and his pickup truck was found abandoned. Kenny said the sheriff is investigating the case as a potential homicide because the truck was found in an area notorious for marijuana growing. "He may have run into the wrong people," Kenny said. In 1996, California voters passed the Compassionate Use Act, which allows seriously ill patients to obtain and use marijuana for medical purposes. But federal law prohibits use and possession of marijuana for any use, regardless of medical need. This has created a legal battleground between the states and the federal government, as federal drug agents continue to enforce federal narcotics laws. In January 2001, Humboldt County Superior Court Judge W. Bruce Watson ordered Sheriff Dennis Lewis to return one ounce of marijuana seized from Giauque during a traffic stop. Giauque had a doctor's recommendation under the state's 1996 medical marijuana law to use pot to ease his neck pain. The sheriff refused and was cited for contempt in May 2001 but that was stayed, according to Patel. Prior to the contempt order, Lewis filed a complaint for declaratory relief in federal court against Giauque and the Drug Enforcement Administration asking the federal court to determine who should control the marijuana. Giauque wanted the case dismissed based on the earlier state court order, and Patel agreed. Central to Patel's holding are two cases. First is a Supreme Court case from 1935 holding that the first court assuming jurisdiction over property may exercise control to the exclusion of others. Penn Gen. Casualty Co. v. Pennsylvania ex rel. Schnader, 294 U.S. 189 (1935). The second is a 1992 5th Circuit case holding that, in the absence of a state forfeiture action, the seizure of property by local police places the items under state court control and bars federal court interference. Scarabin v. DEA, 966 F.2d 989 (1992). Voters in Humboldt County have elected a new county sheriff since Lewis refused to return Giauque's cannabis, in part for his handling of the case, according to Gieringer. "The new sheriff may not have a problem with [the marijuana's] return," he said.Note: There can be no interference in medical marijuana cases in which the weed is returned to its owner.Source: Los Angeles Daily Journal (CA)Author: Pamela A. MacLean, Daily Journal Staff WriterPublished: September 02, 2003Copyright: 2003 Daily JournalsWebsite: http://www.dailyjournal.com/Contact: don_debenedictis dailyjournal.comRelated Articles & Web Site:California NORMLhttp://www.canorml.org/Missing Activist Wins Back Disputed Ounce of Pot http://cannabisnews.com/news/thread17177.shtmlAdvocate Missing from Spy Rock Areahttp://cannabisnews.com/news/thread17192.shtml Home Comment Email Register Recent Comments Help Comment #7 posted by John Tyler on September 04, 2003 at 10:13:09 PT Another theory Kenny said the sheriff is investigating the case as a potential homicide because the truck was found in an area notorious for marijuana growing. "He may have run into the wrong people," Kenny said. Here is another theory... the Sheriff or his people killed him in retaliation and left his truck there to cover their tracks. Maybe, the Sheriff's department should be investigated. [ Post Comment ] Comment #6 posted by kaptinemo on September 04, 2003 at 09:43:19 PT: The seismograph's twitching Just before a major tectonic event like an earthquake, there's usually some indictaion somewhere of the approaching upheaval. Seismographs in research facilities, sometimes around the world, can pick up hints of trouble long before it arrives.The approaching upheaval for DrugWarriors is at hand. The Rosenthal trial with it's sentence guideline defiance has ticked off Ashcroft so much, he's ordering tight monitoring of judges to make sure that the Draconian punishments he is so fond of are meted out as required. And judges, for reasons of their own, are fighting back.Alaska has just declared cannabis legal for personal use. And now we have this latest ruling, vindicating every California MMJ user and setting a precedent that will be cited again and again, imprinting it on the public's mind - which is exactly what the antis DON'T want. A Fed court - has told Feds in essence that they must accept and respect California law. And placed Fed legal dominance regarding drug laws *in toto* in question.The antis should all purchase construction helmets; the wall they built too high and sloppily is losing bricks and mortar at an increasing rate. Standing next to it could be unhealthy. [ Post Comment ] Comment #5 posted by FoM on September 03, 2003 at 20:53:26 PT Mark I posted them because I saw you wrote them so I didn't need to wait. Thanks. [ Post Comment ] Comment #4 posted by FoM on September 03, 2003 at 20:26:48 PT Hi Mark I'm sorry about not having an email but I got viruses and had to stop for my poor computer's sake. Sure I will post the articles but I need to know if you wrote them so I can put a name in the Author section. I'll wait until I hear back from you. I'll go ahead and set them up while I'm waiting though. Nice to see you! [ Post Comment ] Comment #3 posted by Mark Tide on September 03, 2003 at 20:20:34 PT Two Stories from Humboldt Press Howdy FoM (& all),I couldn't get through on email to 'submissions' or 'admin' links, so here's a brief message.Two relevant and timely stories have just been published at Arcata Journal (www.arcata.org).One is about Dr. Mikuriya's situation with Medical Board, and shorter versions of it have also recently been published in both the Southern Humboldt Independent and the McKinleyville Press (Northern Humboldt Co.).The other story is about (now disappeared) local med-cannabis activist, Chris Giauque's recent (some say 'landmark') victory in federal court. Much of what the judge has to say in her ruling is presented in a local context involving the former Humboldt Co. Sheriff.Please take a look at these stories, presently found at the top of the home-page news scroll on the site, and consider posting them up since they contain a lot of valuable information.Let me know what you think, as well.Thanks and Best Wishes,Mark Tide Arcata Journal Arcata Journal [ Post Comment ] Comment #2 posted by FoM on September 03, 2003 at 19:51:47 PT Very Sad Victory Now Christopher Giauque has won but he isn't around to enjoy his victory. I hope they find him and that he is still alive. [ Post Comment ] Comment #1 posted by The GCW on September 03, 2003 at 19:37:58 PT Another hole in the wall. "Federal authorities could appeal her order to the 9th U.S. Circuit Court of Appeals."Yes, they could continue to defecate on Our rights, Our Bill of Rights, Our Constitution, Our Biblical moral rights,,,They really don't want to stop caging humans for using a plant.They want to exterminate cannabis from earth.Cannabis is better than they are.420 x 10420 AMENBut cannabis pro's have another hole in the wall, to make them squirm funny.After they plug the holes with their 10 fingers and their 10 toes, all that will be left is their deceitful nose.Let's rub their nose in it.And make some more holes.(All together now)420 x 10420 AMENI am excited.Christ God Our Father is on someones side of this issue.Do YOu think it is the side of those who cage humans for using His plant?Or do You think He is on Our side, and would like the hole pluggers to stop...I think He will help make more holes.The Green Collar Worker [ Post Comment ] Post Comment