MMJ patient Bob Crouse wins big with Colorado Court of Appeals


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Bob Crouse, right, is seen with supportive protesters outside the El Paso County Courthouse on Aug. 22, 2011. - FILE PHOTO
  • File photo
  • Bob Crouse, right, is seen with supportive protesters outside the El Paso County Courthouse on Aug. 22, 2011.
Today, the Colorado Court of Appeals ruled 2 to 1 that a District Court judgment ordering the Colorado Springs Police Department to return the marijuana seized from leukemia patient Bob Crouse as evidence was the right move. The decision potentially bolsters a lawsuit filed against the city by Crouse, after he was acquitted at trial, because the plants were ruined while in police care.

"it's a 62-page opinion, 30 of it is dissent, but it is a pretty major victory for those involved," says attorney Charles Houghton, who represented Crouse along with Clifton Black and Laura Haynes, and is leading the current lawsuit against the city. "The appeal was filed back in November, and then Court of Appeals things take a while. But they ruled on this as quickly as I've ever seen the Court of Appeals rule on anything. It's huge."

As far as what it means at large, Houghton's not willing to speculate. "I think you need to read the opinion and draw your conclusion. Like most opinions, there's a lot of ways to look at it. And how it's going to be received and interpreted in the future is yet to be seen."

Here's what the opinion — authored by Judge John R. Webb and concurred with by Judge Stephanie Dunn — reasons: "The prosecution contends that the Controlled Substances Act (CSA) preempts the return provision. It relies on only 'obstacle preemption,' a subset of the conflict preemption doctrine.

"We reject this contention, for three reasons. First, the 'positive conflict' phrase in the CSA’s preemption section, precludes applying obstacle preemption. Second, even if obstacle preemption applies, CSA section 885(d), which prevents federal prosecution of 'any duly authorized officer of any State ... who shall be lawfully engaged in the enforcement of any law ...relating to controlled substances,' would preclude applying prohibitions in other CSA sections to police officers complying with a court order issued under the return provision.

"Third, and making the same assumption, the recipient patient’s involvement in the return process also does not create obstacle preemption because the federal government could not commandeer state officials to seize and hold marijuana, and the MM Amendment does not require patients to either demand return or accept returned marijuana.

"Therefore, we affirm the trial court’s order requiring police officers to return marijuana and marijuana plants to defendant, Robert Clyde Crouse."

But for Crouse's case — which comes after a failed prosecution by District Attorney Dan May's office, who also appealed the ruling to return the cannabis and may still appeal this ruling to the Colorado Supreme Court — the news is all good.

"Because now the argument about whether or not the medicine should have been returned at all has been answered: The answer is the medicine should have been returned," Houghton says. "It's never a slam dunk, but it certainly bolsters the position that we took, and that is that he has a right to [police] returning the medicine, or to compensation if they didn't return it to him."

The People of the State of Colorado v. Robert Clyde Crouse


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