Don’t look now, but nullification is about to spread to the courtroom.  NBC 7 in San Diego reported this week that the city’s mayor, Bob Filner, has called for jurors to refuse to convict the operators of licensed marijuana dispensaries who have been arrested under anti-drug laws by the federal government.  State and local laws in San Diego permit the sale and use of marijuana for medicinal purposes.

San Diego Mayor Bob Filner has injected himself into a federal criminal case against the operator of a medical marijuana dispensary, intensifying his standoff with federal prosecutors on cannabis enforcement issues.

Filner’s urging jurors who’ll be chosen for the trial to reject federal law in favor of state statutes under a centuries-old legal concept known as “jury nullification”– whereby jurors can refuse to convict people under laws they believe should not be applied.

“It’s time, like with Prohibition, to step back and say this was a stupid thing to do,” Filner said outside the courthouse. “Let’s step back, and juries ought to take the lead and say that to the federal government…and if the federal government isn’t listening to the mayor, maybe they’ll listen to the jury.”

Against the articulated wishes of the community, the federal government continues to raid these dispensaries and arrest the people who operate them, actions that clearly violate both the Constitution and the sovereignty of the state and local governments.  Filner in decrying this federal usurpation stated, “This is way overdoing it when local laws, state laws allow compassionate use of medical marijuana.”

Since the federal government apparently has no intention of respecting state and local sovereignty nor obeying their own laws, Filner has made an appeal to anyone who might be called as a juror in an upcoming medical marijuana trial.  He called on jurors to send the message to the federal government that, “like with Prohibition…(creating federal drug laws) was a stupid thing to do.”  The jurors have the power, Filner said, to reject the federal laws by finding the defendant innocent.

This is jury nullification, the principle that jurors are not just permitted to judge the facts of a case, but the virtue of the law itself.  This concept, like most ideas that favor liberty and decentralization, is sneered at today by elitist politicians.  Yet, at the time of the founding this was a widely accepted principle.

In a celebrated example of jury nullification in 1737, attorney Andrew Hamilton successfully argued that jurors, “have the right, beyond all dispute, to determine both the law and the fact; and…they ought to do so.”  John Adams said that it was the juror’s “duty” to decide if a law was just, even if the juror was “in direct opposition to the direction of the court.”  John Jay, the first chief justice of the Supreme Court and one of the three penmen of The Federalist, instructed a jury in 1794 that, “you have…a right…to determine the law as well as the fact in controversy.”  And speaking in support of jury nullification, Thomas Jefferson once said that the ability of a jury to nullify an unjust law was essential because, “the execution of laws is more important than the making of them.”

A recent Reason-Rupe poll shows that 52% of Americans believe that the federal government should not prosecute people for possessing marijuana in states that have legalized it.  Still, the tone deaf federal government rumbles on, ignoring the people and any limits on its own power.  Kudos to Mayor Filner for having the courage to advocate civil disobedience by juries in attempting to stop federal overreach.

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