The United States Court of Appeals for the Ninth Circuit recently held that the Americans with Disabilities Act (“ADA”) does not protect the use of medical marijuana by disabled individuals even if that use is authorized by California law. The court rejected the discrimination claims of several disabled California residents who asserted the efforts of two California cities to close medical marijuana dispensing facilities violated their rights under the ADA. (James v. City of Costa Mesa, (--- F.3d ----, C.A.9 (Cal.), May 21, 2012).
Four severely disabled California residents (“Residents”) who obtain medical marijuana from collectives brought a lawsuit against the City of Costa Mesa and the City of Lake Forest alleging discrimination arising from their attempts to close medical marijuana dispensing facilities within their boundaries. Residents alleged that after conventional medications failed to alleviate their pain, they obtained physician recommendations to use medical marijuana. The use of medical marijuana is permissible under California law but is prohibited under federal law by the Controlled Substances Act (“CSA”).
Residents obtained their medical marijuana through collectives in Costa Mesa and Lake Forest. Costa Mesa passed an ordinance in 2005 that completely banned medical marijuana dispensaries from operating within the city. Residents alleged Costa Mesa police raided marijuana collectives that continued to operate despite the ordinance and detained collective members. Lake Forest allegedly raided collectives and also brought a public nuisance action to close the collectives. Residents alleged that the cities’ actions violate Title II of the ADA, which provides that public entities shall not discriminate in the provision of public services. They sought injunctive relief to stop the cities from closing the dispensaries. The trial court denied the requested injunctive relief holding “that the ADA does not protect against discrimination on the basis of marijuana use, even medical marijuana use supervised by a doctor in accordance with state law, unless that use is authorized by federal law.”
The ADA prohibits a public entity “from denying the benefit of public services to ‘any qualified individual with a disability.’” Residents asserted that when the cities interfered with their access to medical marijuana the cities prevented them from accessing public services. The court of appeals rejected this argument finding “that the ADA does not protect medical marijuana users who claim to face discrimination on the basis of their marijuana use.”
The ADA, at 42 U.S.C. § 12210, provides that “the term ‘individual with a disability’ does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.” The court noted that the outcome of this case “is dependent on whether Residents’ medical marijuana use is ‘illegal use of drugs’ within the meaning of § 12210.” The term “illegal use of drugs” is defined in the ADA as “the use of drugs, the possession or distribution of which is unlawful under the [CSA].” The term, however, “does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the [CSA] or other provisions of Federal law.”
It was undisputed that the CSA prohibits possession or distribution of marijuana, even for medical use. Residents, however, contended their use of medical marijuana falls within the exception listed in § 12210, which provides that the term “illegal use of drugs” does not include the use of a drug taken under supervision of a licensed health care professional. The court rejected this argument after examining the text of the statute and its legislative history. The court concluded “that doctor-supervised marijuana use is an illegal use of drugs not covered by the ADA’s supervised use exception.” Although there is some indication “that the federal government’s views on the wisdom of restricting medical marijuana use may be evolving,” as it currently stands “Congress has determined that, for purposes of federal law, marijuana is unacceptable for medical use.” Therefore, medical marijuana use even where recommended by a physician does not fall within the ADA’s supervised use exception.
The court also rejected Residents’ claim that their medical marijuana use falls within § 12210’s provision that exempts drug use that is “authorized . . . by other provisions of Federal law.” Residents point to recent action by Congress that allows implementation of a medical marijuana initiative by Washington D.C. In 1999, Washington D.C. passed an initiative to suspend local criminal penalties for medical marijuana use by seriously ill individuals who obtain a doctor’s recommendation. Congress blocked implementation of the initiative every year after it was passed until 2009, when it allowed the initiative to be implemented. The court rejected Residents’ argument that Congress’ actions in failing to block the implementation of the initiative amounted to “other provisions of Federal law” that authorize medical marijuana use. The court concluded that by allowing Washington D.C.’s initiative “to take effect, Congress merely declined to stand in the way of D.C.’s efforts to suspend local penalties on medical marijuana use” but did not authorize medical marijuana use under federal law.
The court held “that doctor-recommended marijuana use permitted by state law, but prohibited by federal law, is an illegal use of drugs for purposes of the ADA.” Residents’ use of medical marijuana is prohibited by federal law and therefore that use brings them within the illegal drug exclusion of the ADA. Accordingly, the court of appeals upheld the decision of the trial court to deny the injunctive relief requested by Residents.
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