Contact: Alfonso Zavala, Lt. Darren Simmons, or Deputy Roxanne Meyer
Phone: (928) 783-4427
DR# NA

 

FOR IMMEDIATE RELEASE
3:45 PM, April 1, 2014



Okun Case

 

Location of Incident: Yuma County, AZ


On October 4, 2013, a Petition for a Writ of Certiorari was filed on behalf of the Yuma County Sheriff by the Yuma County Attorney, with the sole question to the Court being, “Did the Arizona Court of Appeals violate the Supremacy Clause when it ordered the Yuma County Sheriff to deliver marijuana to a person prohibited from possessing marijuana under federal law but authorized to possess marijuana under state law?” It was our position that the court did. The reasoning for this position was as follows:

An Arizona state judge issued, and the court of appeals affirmed, an order directing the Yuma County Sheriff to violate a clearly established federal law. Pursuant to Article III and Article VI, clause 2, of the United States Constitution, this Court should exercise its supervisory power and direct the state judge to follow federal law.

Article VI, clause 2, of the United States Constitution, reads,

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.  [emphasis added]

The clearly established federal law, in this case was the 21 U.S.C. § 801 et seq., also referred to as “The Controlled Substances Act.”  This Act makes it unlawful to possess, manufacture, distribute or dispense any controlled substance except in a manner authorized by the Controlled Substances Act. 21 U.S.C. §§ 841(a)(1), 844(a).   The Controlled Substances Act provides that “[e]except as authorized by this title, it shall be unlawful for any person knowingly or intentionally - - (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance ….” 21 U.S.C. § 812(a)(1). Simple possession of marijuana is a crime. 21 U.S.C. § 844(a). Marijuana is classified as a Schedule I drug and has no approved use worthy of an exception outside the confines of a U.S.  Government-approved research project. 21 U.S.C. §§ 841(a)(1), 812(b)(1)(B), 812(c), 823(f).  Whereas some other controlled substances can be dispensed and prescribed for medical use, 21 U.S.C. § 829, the same is not true for marijuana. 

Because the trial court’s order required that I unequivocally violate the Controlled Substance Act, it was our position that such order was in direct conflict with federal law and therefore in violation of the Supremacy Clause.

As a professional law enforcement officer, I am sworn to enforce all laws. In this case, a clear conflict between State and Federal law placed the Yuma County Sheriff’s Office and other law enforcement officials throughout the country, into a difficult position by forcing them to decide which law to violate. 

My objective has always been to receive a ruling from the Courts that would outline a resolution for all law enforcement agencies throughout the United States for situations where State law conflicts with Federal Law.

Unfortunately, on March 31, 2014, I received notification that the United States Supreme Court had “Denied Petition” to review this question presented. Obviously, the denial of this petition, and therefore review the question presented in it, was received with great disappointment as not only would it have addressed the specific order in issue, but any other future orders by a judge that may be contrary to clearly established federal law, like the Controlled Substance Act.
 
Even review by the Court followed by an unfavorable holding to our position, at the very least, would provide some insight as to the reasoning behind such holding. Instead, we got nothing.
 
It is my understanding that because the petition was denied and no findings were made as a result, the denial has no impact. Rather, we are left with an order that requires I do something that is, under clearly established Federal Law, likely a crime. The fact that I may be protected by the existence of the order and possible immunities leaves me with little comfort and lends credence to the old adage that “it’s not a crime if you don’t get caught and prosecuted for it.”  As the Yuma County Sheriff and a long time certified peace officer in the State of Arizona, I simply have a hard time subscribing such ideals.

The Sheriff’s Office is currently working with the Yuma County Attorney’s Office to determine the next, best course of action.

Click link for Petition for Writ of Certiorari

Information Released By: Alfonso Zavala, PIO