People v Davidovich - Day 1 of Trial Update

Today I also learned the name of the new witness that the prosecution has placed on the witness list against me! It is a superstar witness that a lot of us have seen on TV! Many of us have come to know him as the “poster child” of medical marijuana eradication efforts from Showtimes famous documentary “In Pot We Trust”.

San Diego County Sheriff and member of the Cross Jurisdictional Narcotics Task Force Steve Reed will be testifying in my trial supposedly as an expert on indoor cultivation of medical marijuana. In the movie he says he has a vision disorder that allows him to see different shades of green better. Apparently h has wrapped himself around the “fierce fight” and has made it his life’s mission.

Watch the movie “In Pot We Trust” and join me in court to ask for his autograph.

Here is a link to the full version of the movie:
SHOWTIME'S "In Pot We Trust"

Update on People V. Davidovich

The prosecutor in my case is Ms. Theresa Pham, a local Deputy District Attorney that seems to be reporting to and getting her marching orders directly from Bonnie Dumanis in this case. In fact several other Deputy DA's are working for her on this case, including Romil Tohidi and a number graduate law clerks that have now been retained by th prosecution to help convict me.

A few weeks ago, at one of the many hearings I have been forced to attend in my case, a Judge determined that one of the four counts (transportation) against me was not valid as there wasn't enough evidence to charge me with it, and dismissed it. This left me with 3 felony charges for which I was to be tried starting on January 21, 2010.

The prosecution however, had something different in mind. The week before my trial, my attorney Michael McCabe and I were called in to court for a "People's Motion for Discovery". Pham was claiming that I was in violation of her request for discovery and needed to be ordered by a judge to produce more information. This was after both I and my attorney spent hours getting together and providing all information to Ms. Pham that she was entitled to.

The hearing took almost half the day and culminated in Pham’s embarrassment in front of the Superior Court Judge So, when he told her "You are asking for what is beyond the power of the court". Ms. Pham’s response to this was priceless. She said, “But, but, but your Honor”.

The judge ultimately refused to order me to provide ALL medical records related to my hospital / doctors visits from birth to the prosecution.

Talk about an attempt at invasion of privacy and patients rights; while Pham was making her arguments, it became very clear that the DA has now taken on the role of physician and is attempting to determine themselves if a patient is qualified to use cannabis.

To make things even worse, the day we walked in to court to defend against supposedly being in violation of Pham's request for discovery, Pham brought in a new 4th charge; possession of Concentrated Cannabis.

In February of 2009, when I was arrested, the NTF officer (Conrado Decastro) seized a number of items that belonged to me. The items related to medical cannabis included ~34g of cannabis and 14g of Concentrated Cannabis (Pressed Kief).

Originally I was only charged with possession with intent to distribute of the 34 grams of dried cannabis flowers. Now however, Pham has decided to add the 14g of pressed kief as a separate charge.

As a result of this new charge, my attorney and I were forced to leave the discovery hearing in front of Judge So, and go down to Department 11 where I was arraigned on the new charge. I entered a plea of NOT GUILTY, and we requested a 995 hearing for an opportunity to get this charge looked at by a judge, and possibly dismissed.

After entering a plea of Not Guilty, we went back to Department 55 to continue the People's Request for Discovery, where Judge So ended up refusing and denying all the requests from the prosecution with the exception of one, having to produce the entire un-redacted version of the member patients list form the collective.

On February 3rd, I am due back in front of Judge So, to see if we are going to be ordered by the court to produce the one entire un-redacted version of the collectives patient member list. The hearing is set for 2/3/2010 at 8:30 in Department 55.

Today (January 25, 2010) my attorney will file with the court a motion requesting the 995 hearing to have a Judge look at the new charge. The date for this hearing will be set for sometime in February.

It seems that the District Attorney’s office has stepped up their efforts to invalidate Proposition 215, now their efforts include attempt to get away with illegal requests in front of Judges as well as the continued prosecution of legitimate patients.

Please come to court and see for yourself what the prosecution is doing to our community!

STOP OPERATION GREEN RX, RESPECT STATE LAW!

Eugene Davidovich

Protest / Rally against Bonnie Dumanis 12/15 - 5-7pm

Where:
The Shapery Emerald Plaza Building,
400 West Broadway, San Diego, CA 92101

When:
December 15, 2009
5:00pm - 7:30pm (please come a little early)

Please join us for a peaceful and legal protest against the San Diego District Attorney Bonie Dumanis on Tuesday December 15^th from 5pm to 7pm. Dumanis is holding a fundraiser for her reelection campaign at the Shapery Building next to the Hall of Justice in Downtown San Diego.

San Diegan’s from all walks of life have been affected by the shameful practices of Dumanis and are no longer willing to stay quiet about it. Bring a friend, bring a sign, get involved!

www.safeaccesssd.org

Requesting Court Support

Tuesday, December 15th at 1:30 pm
DPT. 53 - 220 W BROADWAY, SD CA 92111
www.EugeneDavidovich.com

My name is Eugene Davidovich, I’m a twenty year resident of San Diego, a medical cannabis patient, and a victim of Operation Green Rx and San Diego District Attorney Bonnie Dumanis’ brutal ambition to overturn California’s Compassionate Use Act.

After having served four years in the Navy, including two deployments to the Gulf, medals, commendations and an honorable discharge I began to experience serious medical symptoms. With the use of medical cannabis I found relief from the symptoms without the debilitating side-effects I’d experienced with prescription drugs. During my treatment I was able to complete a Bachelors Degree then a Masters in Business Administration, all while building a successful career as a project manager in software development field.

Then, as a result of law enforcement’s lack of training in California law or its unwillingness to follow that law, all collectives dispensing medical cannabis in San Diego were targeted and systematically closed, effectively eliminating safe access to medicine in San Diego.

After reading the newly provided State Attorney General’s (AG) guidelines for cannabis collectives I formed my own collective and began to lawfully cultivate, and collectively distribute medical cannabis to other members of this collective on a non-profit basis according to the state law of Proposition 215, SB420 and the help of the AG guidelines.
Last year I received a call from a man calling himself Jamie Conlan and asking to join the collective. After a rigorous qualification process where Mr. Conlan presented both a driver’s license and a medical recommendation which he lied to a doctor to obtain, I allowed to him to join and obtain medication from the collective.

Some months later, my Mission Valley apartment was raided by an armed narcotics team and I was taken to the police station where I met Conrado DeCastro who revealed Operation Green Rx. I was to discover later through the prosecutor’s discovery that the officers of the operation were targeting collectives from Cal NORML’S web site and posing as legitimate patients to obtain cannabis recommendations from doctors and then entrap collectives. I was shown two large binders with names and told “we are gonna’ bring all you medical pot people down.” Charged with four felonies, I was taken to jail, for legally providing a patient $120.00 worth of medical cannabis. I didn’t think things could get much worse.

Imagine my shock to find that the DA held a news conference of manufactured lies, touting the success of what they now referred to as Operation Endless Summer, depicting me as a dangerous dealer of large amounts of heroin, meth, marijuana, as well as trotting out the “don’t mess with the military” and the “streets of navy housing” mantra that the San Diego DA Bonnie Dumanis has been maintaining ever since. The evening news quickly picked up the story showing video footage of me at the arraignment hearing, and again listing drugs which did not exist nor with which I had any involvement, let alone charged with selling.

As a result of the false press conference, the police refusal to follow the law and the prosecutor attempting to deny the court evidence that I am a patient protected by medical cannabis laws, I am in the fight of my life.

Please help stop this illegal operation, senseless waste, abuse, harassment of legitimate patients, and the bias of a select few by supporting me in court on Tuesday, December 15, 2009 at 1:30pm in Department 53.

Please visit my website to see the actual video of the delivery of medicine to the undercover, as well as some of the work I have done to raise awareness to the issue since my arrest.

Eugene Davidovich
www.eugenedavidovich.com

Case Law Interpreting Health & Safety Code 11362.775

Case law interpreting California Health & Safety Code § 11362.775, which provides specific
legal protections for the association of qualified persons within the State in order to collectively
or cooperatively cultivate marijuana for medical purposes:

(1) People v. Hochanadel, 98 Cal.Rptr.3d 347 (filed 8/18/2009) – Court concluded that “the
MMPA’s authorization of cooperatives and collectives did not amend the CUA, but rather was a
distinct statutory scheme intended to facilitate the transfer of medical marijuana to qualified
medical marijuana patients under the CUA….” The court also concluded “that storefront
dispensaries that qualify as ‘cooperatives’ or ‘collectives’ under the CUA and MMPA, and
otherwise comply with those laws, may operate legally, and defendants may have a defense at
trial to the charges in this case based upon the CUA and MMPA.”

(2) County of Butte v. Superior Court of Butte County, 96 Cal.Rptr.3d 421 (filed 7/1/2009) –
County of Butte was sued by a member of a medical marijuana collective after being ordered by
a sheriff to destroy some of the marijuana plants in accordance with the County’s underlying
policy to allow qualified patients to grow marijuana collectively only if each member actively
participates in the actual cultivation of the marijuana by planting, watering, pruning, or
harvesting the marijuana. Trial court sustained the civil lawsuit for money damages against the
County and concluded that contrary to the policy of the County, “the [State] legislature intended
collective cultivation of medical marijuana would not require physical participation in the
gardening process by all members of the collective, but rather would permit that some patients
would be able to contribute financially, while others performed the labor and contributed the
skills and ‘know-how.’” Court of Appeal upheld the trial court ruling.

(3) People v. Newcomb et al., 2009 WL 1589574 (filed 6/9/2009) (Not Officially Published) –
Defendants appealed their convictions based upon the collective/cooperative defense under
California Health & Safety Code § 11362.775. Appellate court upheld the convictions, but
elaborated that “other than merely purchasing marijuana, not every member must contribute to
some aspect of the collective or cooperative; … Because some patients may be too ill to
contribute to the collective or cooperative, requiring them to do so, in order to be part of the
collective or cooperative, would be impractical.”

(4) People v. Urziceanu, 132 Cal.App.4th 747 (filed 9/12/2005) – Appellate court reversed
and remanded a trial court’s determination that a defendant was precluded from raising a
“collective, cooperative defense” under Health & Safety Code § 11362.775. The appellate court
found that the defendant had presented the trial court with sufficient evidence that: the defendant
was a qualified patient; the co-defendants were qualified patients; the procedures of the
collective, in question, verified the prescriptions and identities of the various members, making
them qualified patients, as well; members paid membership fees and reimbursed the defendant
for cost incurred in the cultivation through donations; and members volunteered and participated
at the collective, by helping with cultivation, delivery, processing of new applications, etc. The
court elaborated that Health & Safety Code § 11362.775’s “specific itemization of the marijuana
sales law indicates it contemplates the formation and operation of medicinal marijuana
cooperatives that would receive reimbursement for marijuana and the services provided in
conjunction with the provision of that marijuana.”

Provided by: Marcus Boyd, San Diego ASA

SDNN - Eugene Davidovich: Proving my medical marijuana case - Issue 12

The CNOA finds itself, again uncharacteristically, in good company as the American College of Physicians (ACP) in a 2008 position paper titled “Supporting Research into the Therapeutic Role of Marijuana,” also states that “Marijuana has been smoked for its medicinal properties for centuries.”

The CNOA — a training association in California with about 7,000 peace officers, district attorneys and prosecutors and others of the type — is the largest provider of training for narcotics professionals. The overarching misguided scheme that all CNOA’s cannabis training material such as “Use of Marijuana as a Medicine” is that “there is no justification for using marijuana as a medicine.”

Unfortunately, the fact that medical cannabis clearly has a rich history is the only part of the issue where the CNOA and ACP agree. The sad part for San Diegans, especially patients facing prosecution like myself, is that District Attorney Bonnie Dumanis and her officers subscribe to the hand-fed CNOA philosophy that ‘marijuana is not a medicine.’ As a result they are focused on overlooking state law in favor of enforcing federal and thwarting the will of San Diego voters who overwhelmingly passed Proposition 215 in 1996.

The ACP on the other hand is the nation’s largest medical specialty organization and the second largest physician group in the U.S., representing more than 124,000 members who firmly believe that cannabis has legitimate and proven medical application, even in its smoked form. The ACP insists and given their credentials, I believe them that “Preclinical, clinical, and anecdotal reports suggest numerous potential medical uses for marijuana. Additional research is needed to further clarify the therapeutic value of cannabinoids and determine optimal routes of administration.” They go on to say that “Unfortunately, research expansion has been hindered by a complicated federal approval process, limited availability of research-grade marijuana, and the debate over legalization.”

As the patients of physicians who recommend the use of marijuana to alleviate symptoms of conditions from which we suffer, who should we believe? Should we be listening to the staggering amount of medical research, our doctors, and trained scientists? Or should we believe the narcotics officers and District Attorneys like Bonnie Dumanis who mindlessly spout “Marijuana has no medical value because I read it in my CNOA handout.”

Davidovich takes part in a protest outside San Diego's Federal Courthouse last Thursday. (Photo courtesy of Eugene Davidovich)

Dumanis, a career politician and well-known opponent in practice but not in public, of medical marijuana has no formal medical training. After being elected in 2003, Dumanis was instrumental in forming the cross-jurisdictional Narcotics Task Force which since has been responsible for all the raids, arrests, and investigations of medical cannabis patients in San Diego. This enforcement task force, made up of narcotics officers trained by the CNOA and molded into believing that marijuana has no medicinal value, has since been executing one of their primary so called objectives set by Dumanis; ‘clarify’ Proposition 215 for San Diego through investigations and arrests.

This opportunistic ‘clarification’ has included continuous harassment and prosecutions of legitimate medical patients; biannual raids on facilities attempting to lawfully provide medical cannabis to qualified patients and months-long, resource-draining narcotics operations, some of which have been called Endless Summer and Green Rx. The arrests garnered through these operations have often very conveniently turned into convictions for the DA as she forces plea bargains upon scared, sick, often poor patients. Not to mention these actions force collectives to operate so deeply underground that any potential benefit they could bring to the community is swiftly stifled by this constant fear of incarceration and prosecution.

While Dumanis is out publicly proclaiming that there are now more than 60 storefronts operating under the guise of helping sick people; she has yet to see it done legally and claims that all the collectives and cooperatives are illegal, there are dozens of patients writing, calling, and pleading for a sit down and for her to join the newly formed medical marijuana task force and help provide clarification for the already confusing serpentine road map that makes up our medical marijuana laws.

Will there ever come a time when patient’s rights are respected and health issues are actually resolved by our health officials, rather than overzealous bias driven prosecutors and misguided narcotics officers?

Read more: http://www.sdnn.com/sandiego/2009-10-13/blog/a-more-perfect-union/eugene-davidovich-proving-my-medical-marijuana-case-12#ixzz0TqvPeTQd

You’re Rights Too - Poem by William West

You’re Rights Too

October, 2009

I am an American, I believe in the red, white, and blue,

I believe in what she stands for, I believe her heart is true.

I believe the laws of this land are the laws for me and you.

I am your fellow American with unalienable rights too.

I believe in our freedom, I believe in your rights,

I believe our justice system will get through this alright.

Your corrupted ways Mrs. DA are now brought into the light.

What made you think that we would not give you a fight?

We were few when we started, and growing more each day,

We won’t stand by anymore to be treated by you this way.

You couldn’t do this peaceful you had to make it a war,

The law says your illegal when you kick in our doors.

It’s time to turn and hold our ground it’s time to make a stand.

It’s time you too do what’s expected of you by the laws of this land

William W. West

10/11/2009 12:03 AM

Press Release: Protest To Federal Charges

Who: James Dean Stacy raided and arrested on 9/9/9

What: Federal preemption of state law protest

Where: Federal Court House San Diego 940 Front St.

When: Thursday, Oct. 8^th 8:00am Court at 9am

Why: To protect our rights

Attn: General public

On 09/09/09 the Movement In Action collective was raided by the San Diego Sheriff’s Department after a four month investigation. MIA is a legal Non-profit collective and we don’t know why James Stacy is being charged in Federal Court, but we believe that this is an attempt to terrorize the medical cannabis community. Movement In Action is in compliance with State Laws and Bonnie Dumanis has to justify the money that they have wasted on this investigation. If we allow the local authorities to close legal collectives here they will close down the collectives in your area too.

If you want to be proactive please join us and pass this message to all your friends and acquaintances that feel like we do. We appreciate your support. The more of us there are the stronger our message. Please help us help you defend our rights.

Thanks,

MIA Staff

Movement In Action

1050 S. Santa Fe Ave.

Vista, CA 92084

www.movementinaction.org

movementinaction@gmail.com

(760) 500-8868

San DIego City Council * ITEM-125: Appointments to the Medical Marijuana Task Force (MMTF)

* ITEM-125: Appointments to the Medical Marijuana Task Force (MMTF). (Citywide.)

(See memoranda from Council President Hueso dated 9/22/2009 and 9/10/2009; memorandum from Councilmember Lightner dated 9/18/2009; memorandum from Council President Pro Tem Faulconer dated 9/15/2009; memorandum from Councilmember Gloria dated 9/18/2009; memorandum from Councilmember DeMaio dated 9/17/2009; memorandum from Councilmember Frye dated 9/11/2009; and memorandum from Councilmember Emerald dated 9/18/2009.)

COUNCIL PRESIDENT HUESO'S RECOMMENDATION:

Adopt the following resolution: (R-2010-216)

Council confirmation of the following appointments by the City Council of San Diego, to serve as members of the Medical Marijuana Task Force, for terms ending as indicated:

NAME CATEGORY TERM ENDING

· Rev. A. Wayne Riggs Social Service October 13, 2010

(Serra Mesa, District 6) (Nominated by District 1)

· Dave Potter Community Planner/ Land Use/Professional October 13, 2010

(Bay Park, District 6) (Nominated by District 1)

· Dave Martin Business Owner October 13, 2010

(Ocean Beach, District 2) (Nominated by District 2)

· Alex Kreit Legal Professional October 13, 2010

(Hillcrest, District 3) (Nominated by District 3)

· Stephen Whitburn Community Member October 13, 2010

(North Park, District 3) (Nominated by District 3)

· Craig Balben Community Planner/ Land Use / Professional October 13, 2010

(Sabre Springs, District 5) (Nominated by District 5)

· Dr. Tom Cummings Doctor October 13, 2010

(La Jolla, District 1) (Nominated by District 6)

· Mark-Robert Bluemel Legal Profession October 13, 2010

(San Carlos, District 7) (Nominated by District 7)

· John Minto Law Enforcement October 13, 2010

(Santee) (Nominated by District 7)

· Larry F. Sweet Patient October 13, 2010

(Ocean Beach, District 2) (Nominated by District 7)

· Kim Twolan Co-op Designee October 13, 2010

(Birdland, District 6)(Nominated by District 7)

Declaring that pursuant to Council Policy 000-13, for purposes of deliberation and consideration of appointment, it is determined that John Minto is a resident of San Diego County, but not the City of San Diego, and has unique qualifications to serve as a member of the Task Force. Therefore, a conscious exception to Council Policy 000-13 is hereby declared.

SUPPORTING INFORMATION:

Based on Council's direction from the September 8, 2009, meeting regarding the Medical Marijuana Task Force, the Council President has compiled a list of appointees and is bringing the matter before the Council for confirmation.

FISCAL CONSIDERATIONS: None.

EQUAL OPPORTUNITY CONTRACTING INFORMATION (IF APPLICABLE): N/A

PREVIOUS COUNCIL AND/OR COMMITTEE ACTION:

On September 8, 2009, the Council approved the formation of the Medical Marijuana Task Force and directed the Office of the Council President to forward for Council consideration the matter of appointments to the Task Force.

Halsey

Staff: Ana Molina-Rodriguez - (619) 254-1937 (Rev. 9/30/09)

Operation Green Rx Protest Walk - Thursday October 8th 9am- San Diego

Operation Green Rx Protest Walk Thursday October 8^th at 9 am

Help Stop Bonnie’s misguided war against medical cannabis patients and support a local collective entrapped and brought down by the latest round of raids!

Meet at the Federal Courthouse 940 Front Street, San Diego, CA 92101 then walk to District Attorney’s Office at 330 W Broadway, San Diego CA, 92101

Make a statement to our local authorities that we will not tolerate their disobedience and disregard of the peoples will and right to safe access.

Join patients, supporters, and concerned citizens for a peaceful rally / walk from the Federal Courthouse to District Attorney Bonnie Dumanis’ office. Let your voices be heard, that the continued bias driven prosecutions of legitimate medical cannabis patients who were attempting to follow the law must stop. The raids of 9/9/9, previous raids, and the future raids that Bonnie has already planned out must stop!

James Stacy a medical cannabis patient of Movement in Action Collective will be indicted in Federal Court on the morning of October 8^{th .}Movement in Action is one of the collectives that were shut down in Bonnue Dumanis’ latest round of Operation Green Rx on 9/9/9. James was arrested and charged Federally.

Come out and support James and let your voices be heard. We as a community must unite in this struggle for safe access. San Diego is the front lines in the national fight to overturn Proposition 215 and the will of the people. The time is critical and the time is now. Take a day off from work, call in sick, do what you must to make it. Your support on October 8 at 9am is crucial.

Executive Order from Obama - Get Involved - Your HELP NEEDED THIS WEEK

The office of the President of the United States released the below memo (Federal Order) in May of this year. In it there are clear instructions to the DEA and other federal agencies that they should not preempt state law, below the official memo, you will find an analysis of the memo by Omar Figueroa Esq.

Movement in Action as well as the Green Cross Collective were both operating legally under state law. In both cases, court records have shown that undercover officers went to the respective collectives with valid medical marijuana recommendations. Completed all the required procedures for joining the collectives including the membership agreements, patient verification interview, and were distributed in compliance with California State Law medical cannabis as recommended by their physician just as they have been since 2003 as a part of the Bonnie’s continued war against medical cannabis patients in San Diego dubbed “Operation Green Rx”

Testimony from confidential sources inside the District Attorney’s office state Bonnie Dumanis’ the San Diego District attorney and long opponent of medical marijuana and patient’s rights personally requested the participation of the DEA in the 9/9/9 raids. The cross jurisdictional narcotics task force (NTF) helped execute the raids officially on 14 collectives in San Diego. Unofficially a dozen more were targeted and harassed on 9/9/9. In fact in the case of Herbal Health Options in Spring Valley, the Feds (DEA) and NTF came in with no search warrant took everything and told them to shut down.

The Green Cross and Movement in Action are the only two that received federal charges. Come out on Thursday for the Rally at the Federal Courthouse and to Support James Stacy. As soon as we have court information for the Green Cross we will let everyone know.

It is critical for everyone to stand together and to stand up against the continued prosecution, harassment, and outright subversion of state law by a select few.

Take a stand and Get Involved. Come to the Rally this Thursday and to the ASA meeting coming up on October 13^th at 7pm at 6070 Mt. Alifan Dr. Ste 202, San Diego CA 92101

Office of the Press Secretary
-----------------------------------------------
For Immediate Release May 20, 2009

May 20, 2009

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

SUBJECT: Preemption

From our Nation's founding, the American constitutional order has been a Federal system, ensuring a strong role for both the national Government and the States. The Federal Government's role in promoting the general welfare and guarding individual liberties is critical, but State law and national law often operate concurrently to provide independent safeguards for the public. Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government.

An understanding of the important role of State governments in our Federal system is reflected in longstanding practices by executive departments and agencies, which have shown respect for the traditional prerogatives of the States. In recent years, however, notwithstanding Executive Order 13132 of August 4, 1999 (Federalism), executive departments and agencies have sometimes announced that their regulations preempt State law, including State common law, without explicit preemption by the Congress or an otherwise sufficient basis under applicable legal principles.

The purpose of this memorandum is to state the general policy of my Administration that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption. Executive departments and agencies should be mindful that in our Federal system, the citizens of the several States have distinctive circumstances and values, and that in many instances it is appropriate for them to apply to themselves rules and principles that reflect these circumstances and values. As Justice Brandeis explained more than 70 years ago, "[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

To ensure that executive departments and agencies include statements of preemption in regulations only when such statements have a sufficient legal basis:


1. Heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law through the regulation except where preemption provisions are also included in the codified regulation.

2. Heads of departments and agencies should not include preemption provisions in codified regulations except where such provisions would be justified under legal principles governing preemption, including the principles outlined in Executive Order 13132.

3. Heads of departments and agencies should review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption. Where the head of a department or agency determines that a regulatory statement of preemption or codified regulatory provision cannot be so justified, the head of that department or agency should initiate appropriate action, which may include amendment of the relevant regulation.

Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with their statutory authorities. Heads of departments and agencies should consult as necessary with the Attorney General and the Office of Management and Budget's Office of Information and Regulatory Affairs to determine how the requirements of this memorandum apply to particular situations.

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

The Director of the Office of Management and Budget is authorized and directed to publish this memorandum in the Federal Register.

BARACK OBAMA

ANALYSIS OF THE MEMO BY OMAR FIGUEROA, Esq.

#1 – What is the significance of this document/order.

It reiterates the principle of limited federal government articulated by Justice Brandeis of the United States Supreme Court over 70 years ago: "It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." California's exercise of of its state's rights with respect to medical cannabis is certainly considered a novel social and economic experiment these days, although if we look back prior to 1937, when federal cannabis prohibition was enacted, the medical use of cannabis was prevalent throughout the United States. In effect, this presidential memorandum undoes a controversial Bush administration rule known as "preemption", which misused federal regulations to override state laws on issues including the environment, health, and public safety. For example, during the Bush years, federal preemption provisions stopped California from enforcing a law limiting greenhouse gas emissions. President Obama directed heads of executive departments and agencies to review regulations issued within the past 10 years (in other words the Bush years) for statements in regulations or regulatory preambles intended to preempt State law, so that those can be amended to conform to the principles set forth in President Obama's Preemption Memorandum. "Executive departments and agencies should be mindful that in our Federal system, the citizens of the several States have distinctive circumstances and values, and that in many instances it is appropriate for them to apply to themselves rules and principles that reflect those circumstances and values." Word.

#2 Is this document an order?

The document is not technically an "Executive Order"; it is a presidential directive which commands, "Executive deparments and agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with their statutory duties." According to a U.S. Department of Justice memorandum issued to the Counsel for the President in 2000, "A presidential directive has the same substantive legal effect as an executive order. It is the substance of the presidential action that is determinative, not the form of the document conveying that action. Both an executive order and a presidential directive remain effective upon a change in administration, unless otherwise specified in the document, and both continue to be effective until subsequent presidential action is taken."

#3. Is the timing linked to the settling of the San Diego lawsuit over ID cards? (Obama doc released 2 days after)

Possibly, if one assumes President Obama sensed a change in how the Supreme Court would deal with issues of conflict between state and federal laws. Remember, the Supreme Court has recently declined to review pro-medical marijuana appellate opinions in both the Garden Grove (return of property) and San Diego (ID card) cases, so the outlook is encouraging.

#4. To whom does this order apply? DEA, CAMP, FBI, Border Patrol, National Parks, border checks, ect

This presidential directive applies technically to all executive departments and agencies, including the United States Department of Justice, the Drug Enforcement Administration, the Federal Bureau of Investigation, as well Immigrations and Customs Enforcement. CAMP (Campaign Against Marijuana Planting) is a program run by the California Department of Justice, Bureau of Narcotic Enforcement, and is not directly affected by this federal presidential directive. President Obama ordered that the memorandum be published in the Federal Register, where federal rules and regulations are promulgated, so this is a formal directive.

#5 Is this a document people can use in either State or Fed Court now for their defense?

Sure, but it may not get a case "thrown out" of court. At a minimum, it can be used to negotiate a more favorable disposition for a federal defendant whose case is still pending. The impact in state court will not be as great.

#6 Will it help Fed defendants like Charles Lynch and Eddy Lepp?

Both of these defendants have been sentenced already, so it will take more than a presidential directive announcing a philosophical change in how the executive branch of government approaches matters of federalism to liberate Charles Lynch and Eddy Lepp from federal prison. And don't forget Mollie Fry, Bryan Epis, and the thousands of other peaceful human beings languishing in cages at taxper expense. All Obama has to do is issue pardons, or at least commutations, to set free these valiant martyrs of cannabis prohibition!