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LIABILITY ISSUES <br />With respect to issuing business licenses to marijuana storefront facilities a very real issue has <br />arisen: counties and cities are arguably aiding and abetting criminal violations of federal law. Such <br />actions clearly put the counties permitting these establishments in very precarious legal positions. <br />Aiding and abetting a crime occurs when someone commits a crime, the person aiding that crime <br />knew the criminal offender intended to commit the crime, and the person aiding the crime intended <br />to assist the criminal offender in the commission of the crime. <br />The legal definition of aiding and abetting could be applied to counties and cities allowing marijuana <br />facilities to open. A county that has been informed about the Gonzales v. Raich decision knows that <br />all marijuana activity is federally illegal. Furthermore, such counties know that individuals involved <br />in the marijuana business are subject to federal prosecution. When an individual in California <br />cultivates, possesses, transports, or uses marijuana, he or she is committing a federal crime. <br />A county issuing a business license to a marijuana facility knows that the people there are <br />committing federal crimes. The county also knows that those involved in providing and obtaining <br />marijuana are intentionally violating federal law. <br />This very problem is why some counties are re-thinking the presence of marijuana facilities in their <br />communities. There is a valid fear of being prosecuted for aiding and abetting federal drug crimes. <br />Presently, two counties have expressed concern that California's medical marijuana statutes have <br />placed them in such a precarious legal position. Because of the serious criminal ramifications <br />involved in issuing business permits and allowing storefront marijuana businesses to operate within <br />their borders, San Diego and San Bernardino Counties filed consolidated lawsuits against the state <br />seeking to prevent the State of California from enforcing its medical marijuana statutes which <br />potentially subject them to criminal liability, and squarely asserting that California medical <br />marijuana laws are preempted by federal law in this area. After California's medical marijuana laws <br />were all upheld at the trial level, California's Fourth District Court of Appeal found that the State of <br />California could mandate counties to adopt and enforce a voluntary medical marijuana identification <br />card system, and the appellate court bypassed the preemption issue by finding that San Diego and <br />San Bernardino Counties lacked standing to raise this challenge to California's medical marijuana <br />laws. Following this state appellate court decision, independent petitions for review filed by the two <br />counties were both denied by the California Supreme Court. <br />Largely because of the quandary that county and city peace officers in California face in the field <br />when confronted with alleged medical marijuana with respect to enforcement of the total federal <br />criminal prohibition of all marijuana, and state exemption from criminal penalties for medical <br />marijuana users and caregivers, petitions for a writ of certiorari were then separately filed by the two <br />counties seeking review of this decision by the United States Supreme Court in the consolidated <br />cases of County of San Diego, County of San Bernardino, and Gary Penrod, as Sheriff of the County <br />of San Bernardino v. San Diego Norml, State of California, and Sandra Shewry, Director of the <br />California Department of Health Services in her official capacity, Ct.App. Case No. D-5-333.) The <br />High Court has requested the State of California and other interested parties to file responsive briefs <br />to the two counties' and Sheriff Penrod's writ petitions before it decides whether to grant or deny <br />review of these consolidated cases. The petitioners would then be entitled to file a reply to any filed <br />response. It is anticipated that the U.S. Supreme Court will formally grant or deny review of these <br />consolidated cases in late April or early May of 2009. <br />© 2009 California Police Chiefs Assn. 18 All Rights Reserved <br />65A-79