Sarah Holder is a staff writer at CityLab covering local policy, affordable housing, labor, and technology.
To understand legal battles over California’s sanctuary state policies, look to the historical struggle over cannabis legislation.
On June 10, 2005, Felix Kha drove through a red light in Garden Grove, California.
In another city, in another year, he might have gotten away with a traffic fine. But when officers pulled him over, they spotted a small cloth bag on the passenger’s seat. Inside the bag was a small plastic container, and inside the container was less than a third of an ounce of cannabis. The cannabis was medically prescribed for the chronic pain he suffered from, he told them, presenting his doctor’s referral. And medical cannabis had been legal statewide since the Compassionate Use Act (Proposition 215) took effect in 1996.
The officers seized it anyway. Garden Grove wanted nothing to do with Proposition 215, it later argued in court. California had already acted unconstitutionally in passing it, and so the city would adhere to the federal government’s policy of cannabis prohibition instead. It was an argument being used by other conservative cities across the state, primarily in the Central Valley and along the southern coast.
By running the light, Kha had inadvertently run right into one of California’s most heated debates, one that has continued in some form or another for decades: Among a snarl of city, state, and federal players, which laws rule?
Today, California has solidified its position as a locus of federal resistance on multiple fronts. As of April, Attorney General Jeff Sessions has three simultaneous lawsuits open against California’s state leadership, challenging their perceived over-reach when it comes to environmental protections, property rights, and especially sanctuary state policies.
“To the extent it looks like we’re focusing on California, that is really a product of the extreme nature of the laws California has been passing in recent days," a senior Department of Justice official told BuzzfeedNews. "They are passing laws that no other state is passing or has thought to pass, and that’s because the laws are unconstitutional.”
But as the largely liberal California battles the Republican-led federal government, many of the same conservative cities involved in medical cannabis-related resistance are flexing back yet again.
Last month, cities like Los Alamitos and larger counties like Orange and San Diego began to come out against California’s sanctuary policy, echoing Garden Grove’s position: their obligation to the federal government supersedes their obligation to the state. This time, instead of sidestepping cannabis laws, they're arguing cities should be able to cooperate fully with federal immigration services and turn over undocumented immigrants to ICE for deportation, even as the state declares local enforcement agencies should protect California residents. Los Alamitos was the first to finalize a vote to exempt themselves from SB-54 on Tuesday, but the mayor of Huntington Beach told CityLab he was examining the option as well. Nearly a dozen other cities and counties have signed onto the Justice Department’s lawsuit. While Trump praises their defiance, the ACLU has mounted a lawsuit against Los Alamitos’ exemption ruling, and the city has turned to crowdfunding to help pay for legal fees.
To defend their stance, cities are using some of the same legal arguments deployed in the late 1990s and early 2000s—but there are also signs, said legal experts, that they’ve been learning from courtroom setbacks over cannabis.
Between “when Prop 215 took effect through November 2016 [when adult use and cultivation of small amounts of marijuana was legalized statewide], there emerged a whole swath of cities and counties that wouldn’t allow dispensaries or delivery services to be in their city or county,” said David Goldman, president of a Democratic party-affiliated cannabis organization in San Francisco, the Brownie Mary Club. There were also areas where officers refused to issue medical cannabis licenses to accredited vendors, or simply continued to confiscate drugs and arrest people for possession—even people like Kha, who had licenses or prescriptions.
Part of Prop 215’s weakness (and part of the reason it was so easy for counties to dodge it) was that it didn’t mandate that people actively have access to cannabis, only that they were given limited immunity from prosecution if found in possession. “[Counties] would use zoning restrictions to claim that you couldn’t do it [within certain areas],” said Goldman. “Local zoning ordinances were employed by cities and counties to try and stifle people’s rights.”
Most of this enforcement was de facto, dictated by individual cities’ enforcement whims. These inconsistent laws were able to flourish because at the time, “the federal government was treading very carefully around cannabis legislation,” said Rick Su, a law professor from the University of Buffalo who specializes in immigration and local legal issues. “There wasn't any explicit litigation about whether or not medical cannabis was legal or whether it was preempted by federal law.”
But cities wanted to clarify that stance, so legal battles ensued. Dale Gieringer, the head of California NORML, a state-wide marijuana reform organization, points to a 2006 case between a local chapter, San Diego NORML, and the County of San Diego as precedent-setting. When NORML threatened to sue the county for “failing to comply with obligations imposed on the county by California’s medical marijuana laws,” the county mounted a defense, arguing that California’s medical marijuana laws were preempted under the Supremacy Clause of the Constitution.
In response to the threat, San Bernardino and San Diego counties filed their own lawsuit, again pointing to the Supremacy Clause. The counties were especially peeved about a 2004 law asking them to give official ID cards to medical cannabis patients, on the grounds that the act further institutionalized an already unconstitutional demand. “That was rejected flat out in the court,” said Gieringer. “For the simple reason that Prop 215 just changed state law, and didn’t change the federal law at all.” In fact, it was rejected flat out in three courts: the state appellate judge ruled federal law did not preempt state law in 2006, so San Bernardino and San Diego appealed to the state’s 4th District Court of Appeals in 2008, where they were denied again. Finally, in 2009, San Diego appealed all the way to the U.S. Supreme Court—which refused to hear it at all.
Kha’s case—the one in the car—was most damning for those arguing against the right-to-cannabis laws. Garden Grove v. Orange County, as it came to be known, made it all the way to California’s Superior Court. There, the judge ruled that the city did not have a responsibility to federal law, and shouldn’t have confiscated Kha’s supply. Kha never got his cannabis back (the plant had soured during the long years of litigation), but he was compensated for his loss.
While city vs. anti-sanctuary state litigation is still in its infancy, the vocabulary has echoes of these same cases: Supremacy clauses have been cited; local control has been highlighted. But there’s one major legal difference, says Su. Both argue that the state law is unconstitutional, but while medical cannabis opponents tried to overturn the law for everyone, the anti-sanctuary cities today are also fighting for the right to individually exempt themselves. If cities really believed such a law would be ruled unconstitutional in a higher court anyway, why opt out?
Maybe, Su says, they’ve just learned from the anti-cannabis cities’ mistakes.
After the Supreme Court refused to hear San Diego’s case, the counties and cities that had resisted issuing medical ID cards had to start. But not much else really changed. “Ultimately what ended up happening was a sort of compromise,” said Su. Even after their unconstitutionality argument was invalidated, cities continued to use land control, land use, and home rule powers to enforce their own makeshift local laws.
State medical cannabis approvals still held—cities couldn’t impose fines or arrest those with a medical cannabis license. But what cities could (and did) do was make cannabis much harder to access. While these cities originally wanted Prop 215 abolished, what they eventually got was exactly what some California cities of today are arguing for: exemption.
As of January 1, both medical and recreational cannabis is legal state-wide, after California passed Proposition 64, the Adult Use of Marijuana Act, with approximately 57 percent of the vote in 2016. But enforcement (and the specifics of what’s legal where) still vary widely across the state.
Cities can decide whether to allow residents to grow cannabis in their backyards or not, and whether it can be sold in retail stores, only medical shops, or at all. Irvine’s rules are strict; Los Angeles’, San Jose’s, and Oakland’s less so. An analysis from The Mercury News found that only one in seven California cities allows recreational cannabis stores; and only one in three allows any cannabis business within its borders. In two small Northern California towns, Gridley and Montague, individuals aren’t able to grow any cannabis plants (indoors or outdoors), despite Prop 64’s clear allowance of six plants per adult. And still today, more than 20 years after medical cannabis was legalized, “fewer than one in five California cities allow medical cannabis dispensaries,” according to the Mercury News’ counts.
Simultaneously, some cities’ policies are even more progressive than the state’s: San Francisco is acting locally to erase decades-old damage caused by harsh cannabis-related convictions, by reversing or reducing charges levied by the city dating back all the way to 1975. Oakland, Los Angeles, and Sacramento are implementing different kinds of cannabis equity programs that, among other things, help low-income residents and those with past criminal records to open up their own cannabis dispensaries.
This historical—and continuing—battle over how exactly to regulate cannabis serves as a reminder that California is hardly a blue monolith. There are plenty of cities that buck the political trend, and as people sort themselves into geographic enclaves based on partisan interests nationwide, state versus local interest issues will only get more contentious, says Su.
“When it comes to the deployment of local resources, that's a fundamental local issue,” said Su. It’s that fundamental localism that can be used to strengthen both the cases of anti-sanctuary cities in California, and blue cities that hope to become sanctuaries in other redder states. Cooperating with ICE (or refusing to) involves the spending or saving of local tax dollars and the deployment or restriction of local police resources. If a city official or a local police department wants to call ICE every time they pull over an immigrant—whether or not they’ve committed a crime, and whether or not their home state wants them to—who’s to stop them? Similarly, if a sheriff chooses not to alert ICE when an undocumented immigrant leaves jail, who will know to punish them? (Of course, as the ACLU’s suit against Los Alamitos and the DOJ’s lawsuit against California demonstrates, punishments are sometimes levied.)
But these questions also get at the bigger problem surrounding federal enforcement policies versus state ones—and the limits of both federal and state control on their local constituents. “Despite the bluster that Trump and Sessions had about sanctuary cities right after the election, I think they're slowly coming to the realization that people sort of know already,” said Su. “The federal government's ability to actually mandate one way or the other what local governments can do is extremely limited.”
Legally, the state’s chokehold is firmer. But as the patchwork approach to California’s cannabis laws displays, it’s possible for cities to wriggle out.