Christopher Giauque

SoHum man still missing

Chris Giauque, a medical marijuana activist from Southern Humboldt, was still missing as of press time late Tuesday -- and his family fears the worst.

Giauque was last seen on Aug. 9 in the Spy Rock Road area of Mendocino County, according to Humboldt County Sheriff's Department spokesperson Brenda Gainey. He had driven there from his home in Salmon Creek to meet a friend.

Gainey said that Giauque's wife reported him missing late the next day.

On Aug. 13, state park police found Giauque's truck parked on the Avenue of the Giants near Elk Creek. Gainey said that the truck showed no visible signs of a struggle, and that further forensic tests will be conducted later this week.

Giauque's brother Clint, a resident of Arcata, said on Monday that he had little hope that his brother Chris had simply wandered off, or was otherwise missing but unharmed.

"I suspect that someone killed my brother," he said. "I know someone killed my brother." Clint Giauque expressed strong concerns that the Sheriff's Department was not investigating the case as actively as it should. He said he feared that his brother's clashes with the department over the issue of medical marijuana would weaken its desire to solve the case.

Chris Giauque, a medical marijuana patient, sued the county over an ounce of cannabis that the department confiscated from him in 1999. He was arrested near the Humboldt County Courthouse in early 2001, right before a planned public marijuana give-away.

Lt. Steve Knight, head of the sheriff's detective bureau, said that Giauque's activism "has not and will not" affect his detectives' investigation. He noted that detectives have been working on the case every day and have received assistance from other law enforcement agencies, including the FBI. "We treat everyone as absolutely the same," Knight said.

Anyone with information should call the Sheriff's Dept. at 445-7251.

http://cannabisnews.com/news/thread17222.shtml
http://www.northcoastjournal.com/082103/news0821.html

US Judge Rules Giauque's Pot Off-Limits To Feds
Posted by CN Staff on September 03, 2003 at 18:58:38 PT
By Pamela A. MacLean, Daily Journal Staff Writer
Source: Daily Journal

San Francisco -- For the first time, a federal judge has made it clear that local sheriffs can't run to federal court to circumvent a state judge's order that they return seized medical marijuana to its owner.

In a groundbreaking decision, Chief U.S. District Judge Marilyn Hall Patel ruled Friday that federal courts have no authority to authorize seizure of pot controlled by a Humboldt County sheriff after a state judge ordered the reluctant sheriff to return the ounce of pot to its owner, Christopher Giauque.

"This court is without subject matter jurisdiction to revisit application of the Controlled Substances Act to precisely the same factual situation addressed and adjudicated by the state court," Patel concluded. In the Matter of Seizure of Approximately 28 Grams of Marijuana, "Federal authorities may not muscle in on state proceedings in order to gain control over property seized by state police," Patel wrote.

"This is a landmark," said Dale Gieringer, the California coordinator of the National Organization for the Reform of Marijuana Laws. "This is the first time any federal court has ever ordered the return of marijuana" in a medical marijuana case, he said. Federal authorities could appeal her order to the 9th U.S. Circuit Court of Appeals.

Matt Jacobs, spokesman for the San Francisco U.S. attorney's office, declined comment on the case and Justice Department attorney Mark Quinlivan did not return a call for comment. Quinlivan flew to California from Washington to argue in support of the seizure of Giauque's ounce. More than a half-dozen superior court judges around California and at least one Oregon judge have ordered the return to the patients of medical marijuana seized by police.

Similar state cases have popped up in Shasta, Sutter, San Benito, San Luis Obispo, Mendocino and Sonoma counties, Gieringer said. In Sonoma, a judge ordered five pounds of marijuana returned, according to Gieringer. "This is a major victory for medical marijuana patients and for state's rights," said Bryce Kenny of Arcata, Giauque's attorney. In a strange twist, Kenny said, his client is not around to celebrate the victory. Giauque disappeared on a remote mountain road two weeks ago and his pickup truck was found abandoned.

Kenny said the sheriff is investigating the case as a potential homicide because the truck was found in an area notorious for marijuana growing. "He may have run into the wrong people," Kenny said. In 1996, California voters passed the Compassionate Use Act, which allows seriously ill patients to obtain and use marijuana for medical purposes.

But federal law prohibits use and possession of marijuana for any use, regardless of medical need. This has created a legal battleground between the states and the federal government, as federal drug agents continue to enforce federal narcotics laws. In January 2001, Humboldt County Superior Court Judge W. Bruce Watson ordered Sheriff Dennis Lewis to return one ounce of marijuana seized from Giauque during a traffic stop. Giauque had a doctor's recommendation under the state's 1996 medical marijuana law to use pot to ease his neck pain.

The sheriff refused and was cited for contempt in May 2001 but that was stayed, according to Patel. Prior to the contempt order, Lewis filed a complaint for declaratory relief in federal court against Giauque and the Drug Enforcement Administration asking the federal court to determine who should control the marijuana.

Giauque wanted the case dismissed based on the earlier state court order, and Patel agreed. Central to Patel's holding are two cases.

First is a Supreme Court case from 1935 holding that the first court assuming jurisdiction over property may exercise control to the exclusion of others. Penn Gen. Casualty Co. v. Pennsylvania ex rel. Schnader, 294 U.S. 189 (1935).

The second is a 1992 5th Circuit case holding that, in the absence of a state forfeiture action, the seizure of property by local police places the items under state court control and bars federal court interference.

Scarabin v. DEA, 966 F.2d 989 (1992). Voters in Humboldt County have elected a new county sheriff since Lewis refused to return Giauque's cannabis, in part for his handling of the case, according to Gieringer. "The new sheriff may not have a problem with [the marijuana's] return," he said. Note: There can be no interference in medical marijuana cases in which the weed is returned to its owner.

Source: Los Angeles Daily Journal (CA)
Author: Pamela A. MacLean, Daily Journal Staff Writer
Published: September 02, 2003
Copyright: 2003 Daily Journals
Website: http://www.dailyjournal.com/
Contact: don_debenedictis@dailyjournal.com
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