Colorado made history last November when it became one of the first states in the country to legalize marijuana for adults. Support was exceptionally strong in Denver, where 66% of city voters cast their ballots in favor of Amendment 64.
Mayor Michael Hancock and his allies on the Denver City Council are now attempting to roll back that progress with a blatantly unconstitutional measure that would criminalize adults’ use of marijuana — even on private property — if others report seeing or smelling it! If this ordinance is approved, adults will face up to one year in jail and a fine of up to $1,000 just for using marijuana in front of their window or in their backyard — harsher penalties than before the passage of Amendment 64! We cannot allow Denver officials to approve this foolish proposal. The city should not be spending taxpayer dollars to arrest and prosecute citizens who are in compliance with state law. And since the measure is a clear violation of the Colorado Constitution, the city will end up spending even more taxpayer dollars defending it in court.
Here is coverage of the issue and reaction from city councilors opposed to the measure:
On Friday, MPP's Mason Tvert reacted to Mayor Hancock's attempt to subvert the law:
If you’ve been following news in the drug policy world, you know that Senator Jim Webb (D-VA) is sponsoring the National Criminal Justice Commission Act. The bill would create a blue-ribbon panel that, according to Webb, would “take the long-overdue step of undertaking a comprehensive review of the criminal justice system, producing recommendations for changes in oversight, policies, practices, and laws designed to prevent, deter, and reduce crime and violence, improve cost-effectiveness, and ensure the interests of justice at every step of the criminal justice system.” Among the many reasons Webb feels the commission is needed, “the number of incarcerated drug offenders has soared 1200% since 1980.” Sounds sensible enough, right?
Last night, the U.S. Senate narrowly shot down an amendment that would have established such a commission. Why? States’ rights of course.
“We are absolutely ignoring the Constitution if we do this,” said noted drug warrior Sen. Tom Coburn (R-OK). “We have no role … to involve ourselves in the criminal court system or the penal system in my state or any other state.”
Sen. Kay Bailey Hutchison (R-TX) was even more incredulous: “This is the most massive encroachment on states' rights I have ever seen in this body,” she said.
Never mind that the bill wouldn’t actually change any state laws; it would only establish a commission to review policies and make non-binding recommendations. At this point, you might be curious how these senators feel about the Department of Justice threatening to shut down medical marijuana dispensaries in California. So was I, so I called their offices.
“Given the senator’s strong support for states’ rights, where does s/he stand on the Department of Justice threatening to close medical marijuana dispensaries in California, even though medical marijuana is legal under state law,” I asked, after repeating each senator’s quotes above. Not surprisingly, each time I was transferred around a couple times, given a “no comment,” and told to leave a voicemail that’ll almost certainly never be returned. Before Sen. Coburn’s office sent me to voicemail purgatory, I did get one staffer to mutter “um … well … he um … he’s opposed to medical … er, I’m not sure.”
Anyone else reminded of the Robot on Lost in Space: “does not compute?”
We will of course update this if we get any sort of official response. In the mean time, maybe you’ll have better luck than me. If you live in Texas, you can ask Sen. Hutchison again by calling 202-224-5922. If you’re reading this from Oklahoma, Sen. Coburn’s office number is 202-224-5754.
In the latest move of the Obama Administration’s incomprehensible attack on medical marijuana, U.S. attorneys announced today that they will begin to prosecute media outlets that publish advertisements for medical marijuana! It seems that when it comes to medical marijuana users, or the states in which they live for that matter, the Bill of Rights means practically nothing.
First, there was the memo released by the ATF this month warning firearms dealers that it was against the law to sell guns or ammunition to medical marijuana patients, effectively eliminating the Second Amendment rights of hundreds of thousands of patients in states where medical marijuana is legal. Then on Friday, when the U.S. attorneys from California unveiled their intent to shut down the medical marijuana industry and drive patients into the hands of gangs and other illicit dealers, they said that one of their core tactics was to intimidate landlords and property owners who rent to dispensaries by threatening them with seizure of their assets. While this may not be a direct violation of the law (unfortunately), it certainly treads on the spirit of the Fourth Amendment’s protections of life, liberty, and property. Now, those same attorneys are stomping on the First Amendment as well.
The actions of the Department of Justice are simply baffling.
In its vain and misguided attempt to stymie medical marijuana and stop the reform movement from making any further policy gains, the DOJ is basically trying to shut down two industries that make money, employ many people throughout California, and earn tax revenue for a state in a disastrous economic situation. Neither of these moves makes any sense. Shutting down the medical marijuana industry is not going to stop marijuana production. Denying them the ability to advertise by prosecuting those who publish the ads will not stop marijuana distributors from making a profit. It will, however, be disastrous for the publishing industry. Both the medical marijuana and publishing industries provide much-needed jobs and revenue to California. These methods are quite simply poor tools to accomplish an illegitimate goal. The fact that the media, which has the ability to sway public opinion against the administration, is being targeted seems particularly stupid.
Now, there are of course justifiable reasons for not allowing advertisement for some illegal activity. It is interesting to note, however, that pharmaceutical companies that sell drugs for billions in profits (the very reason the DOJ claims the marijuana industry is so evil) are allowed to advertise freely in all mediums.
Constitutional and federal law aside, it is morbidly fascinating from a philosophical standpoint that the administration is subverting the right to use marijuana to treat one’s illness by attacking two other, more deeply-held rights. After all, it certainly seems that more Americans care about free speech and property rights than they do about bodily autonomy. Will this policy end up being counterproductive to the stated goals of the administration?
Probably. Just like every facet of prohibition, it is pretty much doomed to failure in the long run.
If you’d like to tell the president how you feel about this, please go here or call (202) 456-1111.
We are all used to the federal government offering only limited deference to states when it comes to medical marijuana. And we are certainly used to it refusing to admit that patients have a legal right to use marijuana for medical purposes, or even that marijuana has medical value at all.
Apparently, it also thinks that those who are abiding by state law and using medical marijuana do not have certain constitutional rights, either.
In a memo issued last week by the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the federal government asserted that it is a violation of federal law to possess a gun or ammunition if you are a marijuana user. This broad definition also includes individuals who are state-legal medical marijuana patients.
It is important to note that this is only the opinion of the BATFE and is not legally binding. A case dealing with this issue for an individual patient has not been taken up on a federal level, yet many who are charged with federal marijuana violations often find themselves facing additional firearms charges extending from searches of their property. The Department of Justice has so far kept fairly close to its word when it comes to leaving medical marijuana patients alone, but one could easily imagine a situation in which a firearm violation could be used to prosecute a particularly meddlesome patient who may not be doing anything involving marijuana that would warrant investigation.
It is also important to remember that the federal government cannot force state and local law enforcement to enforce federal law. For example, the DEA can’t make the Colorado state police ignore their medical marijuana laws and start arresting patients for violating the Controlled Substances Act. So don’t start worrying that just because you have a medical marijuana card, you are about to be raided because you own a firearm. In fact, a court decision in Oregon ruled that states have every right to allow patients to possess firearms and may even grant them concealed-carry licenses if they wish.
However, federal law enforcement does reserve the right to charge you with firearms violations if you are a patient and own a gun. This should be no more worrisome in practical terms than the Department of Justice asserting that it has the legal right to charge you with marijuana violations if you are a patient and own some medicine.
This is much more troubling in terms of individual rights and human dignity. The Second Amendment clearly states our rights as citizens to possess firearms. The federal government, however, seems to think that people who use marijuana to treat their illnesses can not only face arrest for doing so, but are also not entitled to the same constitutional rights as everyone else. Regardless of the promises to not target medical marijuana users, it is pretty clear that the government views them as second-class citizens. This discrimination cannot be tolerated in a free society.
The full memo can be viewed here.
Special thanks to Ed Docter from the Montana Cannabis Industry Association for the tip.
Back in January, this blog mentioned a case in which an anti-marijuana sheriff in Jackson County, Oregon, was trying to deny the renewal of a concealed handgun permit for Cynthia Willis, a licensed medical marijuana patient. The sheriff was so adamant about the case that he took it all the way to the Oregon Supreme Court. His primary argument was that granting a concealed handgun license to a patient (or in his terms, drug user) would be a violation of the Federal Gun Control Act. This law makes it illegal for anyone using or possessing an illegal drug to own or use a firearm. And of course, the federal government still considers marijuana in any form to be illegal.
Today, the court ruled unanimously that being a medical marijuana patient does not strip a person of his or her constitutional rights, at least as far as state law is concerned. From the court’s opinion:
Congress did not directly require the states to use their gun licensing mechanisms for the purpose of keeping guns out of the hands of marijuana users, and we conclude that Congress did not intend to achieve that same result by making it illegal for medical marijuana users to possess guns. The state's decision not to use its gun licensing mechanism as a means of enforcing federal law does not pose an obstacle to the enforcement of that law. Federal officials can effectively enforce the federal prohibition on gun possession by marijuana users by arresting and turning over for prosecution those who violate it.
Ultimately, then, we reject the sheriffs' contention that, to the extent that ORS 166.291 requires county sheriffs to issue CHLs to qualified applicants without regard to their use of medical marijuana, the statute is preempted by the federal prohibition on gun possession by marijuana users at 18 USC section 922(g)(3). The sheriffs cannot justify their denial of the applications at issue on that ground.
Basically, this means that because the Oregon gun licensing law does not substantially interfere with the ability of federal officials to enforce their gun control law, Oregon’s law is not pre-empted and is valid. The sheriff, being a state law enforcement official, must abide by state law and issue canceled handgun licenses to anyone who qualifies under Oregon law, even if that individual wouldn’t qualify under the federal scheme. Because being a medical marijuana patient is not grounds for refusal of a permit in Oregon, the sheriff must grant Ms. Willis’s concealed handgun permit even though she would still be liable under federal law for having a gun while using “illicit narcotics.”
It should. Check out the case of Gonzalez v. Raich (2005), which established that the federal government is free to enforce their marijuana laws despite California’s right to exempt medical marijuana users and caregivers from state criminal liability.
Two cases involving medical marijuana patients have reached the supreme courts of their respective states, and their results could have far-reaching implications for medical marijuana in the future.
In Washington, the state Supreme Court announced it will hear the appeal of a woman who was fired from her job at a telephone call center for testing positive for marijuana on a workplace drug test, despite being a registered medical marijuana patient. While the medical marijuana law in Washington does not protect patients using marijuana in the workplace, the patient had never used her medicine while on the job, and did not work in a role where residual intoxication could prove dangerous to others. Her employer terminated her for using a medicine that she was legally allowed to use in her own home.
It is not known whether this company, Teletech, has fired employees for testing positive for other controlled substances that they have been using legally on the advice of a physician. My guess is they have not.
The final ruling in this case will clarify the rights of employers and employees in medical marijuana states and will no doubt influence the language of future bills, as will the case of Joseph Casias, a Michigan medical marijuana patient who was fired under similar circumstances.
And on March 3, the Oregon Supreme Court will tackle the case of Cynthia Willis, a medical marijuana patient and long-time holder of a concealed-carry handgun permit. Jackson County Sheriff Mike Winters denied Willis' permit renewal after he learned that she was a patient, citing conflict with federal law barring drug users from possessing firearms.
So far, the lower courts have sided with Ms. Willis. Let's hope the highest court in the state does, too. People should never be denied their constitutional rights simply because they are sick.