There has been a lot of discussion in the blogosphere, particularly among media, about the decision that just came down from the Ninth Circuit involving the efforts of the cities of Costa Mesa and Lake Forest in California to close down places that grew pot for medical purposes. The link to that decision is below in the first comments. In that case, plaintiffs were severely disabled residents of California for whom conventional medical services, drugs and medications were not able to alleviate the pain caused by their impairment. Each plaintiff obtained a recommendation from a medical doctor to use marijuana to treat their pain. Medical marijuana use is permissible under California law but is prohibited by the federal controlled substances act. The plaintiffs obtained their medical marijuana through collectives in Costa Mesa and Lake Forest California. However, those two cities adopted ordinances excluding medical marijuana dispensaries from their communities. The plaintiffs sued alleging that the city in prohibiting the medical marijuana collectives violated title II of the ADA.
The first question was whether the plaintiff could be protected under the ADA at all. The ADA does not protect people who use illegal drugs. However, the ADA defines illegal use of drugs as: “use of drugs, the possession and distribution of which is unlawful under the controlled substances act. Such term does not include the use of a drug taken under supervision by a licensed healthcare professional, or other use as authorized by the controlled substances act or other provisions of federal law.” (emphasis added)
The plaintiffs argued that the comma after the word “healthcare professional,” meant that they were not subject to the illegal use of drugs exclusion from the ADA because the comma meant that the clause dealing with “supervision by a licensed healthcare professional,” was an independent clause from the clause that followed. The defendant argued that the comma did not signify two independent clauses, and if they were truly two independent clauses in meaning, Congress would have been a lot more clear to that effect. The majority opinion said that while the text of the statute is ultimately inconclusive, the cities’ interpretation that the exclusion applied to only to the use of drugs allowed under the controlled substances act made the most sense. The majority came to this conclusion because of their reading of the legislative history and because it is too much to ask for the statute to be construed as two independent clauses solely because of a comma. Thus, the court held that use of marijuana even with a prescription allowed under state law is an illegal use under the ADA and thus, does not protect medical marijuana users that claim disability discrimination on the basis of their marijuana use.
The concurring and dissenting opinion in part is interesting. That opinion, written by Judge Berzon, takes the opposite view by saying that the use of medical marijuana with a prescription would not be considered an illegal use under the ADA. She looks at the legislative history and a plain reading of the clause (in particular the placement of the comma), to reach that conclusion. That said, she winds up concurring with the majority opinion because she doesn’t see the title II violation. That is, the city was excluding medical marijuana dispensaries through enforcing the controlled substances act and not, for example, adopting a policy preventing individual with disabilities who use medical marijuana from attending school or obtaining unemployment benefits and the like.
So what can we take away from this case. First, a person who uses marijuana for medical purposes may or may not be engaged in the illegal use of drugs as defined by the ADA. Second, for a title II claim to succeed against a city enforcing a federal law, such as the controlled substances act, that claim is going to have to have a lot more connection to it than just persons with disabilities being adversely affected. That is, in this particular case, it isn’t the city in this case through a policy it has adopted that is doing the discrimination per se.
Preventive law tip: don’t automatically assume that a person who uses marijuana is using illegal drugs and therefore is not protected under the Americans with Disabilities Act. In that situation, you want to engage in a secondary inquiry as to whether that individual is otherwise qualified. In order to be protected under the Americans with Disabilities Act a person has to be both a person with a disability as well as a person who is otherwise qualified.