UPDATE: On Tuesday, an Arizona state court ordered the state to implement the dispensary provisions of the Arizona Medical Marijuana Act. The court also declared three medical marijuana regulations invalid and upheld other challenged regulations. The health department had said the state might wait until September or later to issue dispensary registrations. Hopefully, this means dispensaries will finally be registered by spring.
Today, Arizona Gov. Jan Brewer (R) announced she will not re-file her lawsuit questioning the validity of Arizona's medical marijuana program. She also announced that once litigation is resolved challenging the health department rules, her health department will begin issuing dispensary registrations.
Gov. Brewer's announcement follows a January 4 ruling dismissing her lawsuit. Judge Susan Bolton agreed with the ACLU, Department of Justice, and other attorneys, and found that there was no genuine, imminent threat that state employees would be prosecuted. Bolton said that Brewer could re-file if the problems with her complaint were addressed.
The U.S. attorney for Arizona at the time the case was filed, Dennis Burke, sent a letter to the Arizona health department on May 2, 2011 that flew in the face of the Obama Administration's stated policy of not targeting those complying with state medical marijuana laws. Burke's letter said "the [federal] CSA may be vigorously enforced against those individuals and entities who operate large marijuana production facilities" even if they are in compliance with state laws, as well as those who "knowingly facilitate the actions of traffickers." After receiving the letter, Gov. Brewer directed Arizona Attorney General Tom Horne to file the litigation requesting clarity, even though Burke told media outlets that his office would not target state employees.
Today, Gov. Brewer wrote the acting U.S. attorney for Arizona, Ann Birmingham Scheel, noting her plans to finally move forward. Brewer requested clarification as to whether there are any activities state employees should not engage in and said "the Department of Justice and the administration which you serve will have a lot of explaining to do to the citizens of our country, and State of Arizona employees in particular, if the State's reasonable and straightforward requests for clarity are ignored, and the Department of Justice then ambushes State employees with prosecution or civil penalties for implementing the AMMA and licensing medical marijuana dispensaries."
Now, only one governor is stubbornly refusing to move forward with implementing a duly enacted medical marijuana dispensary program: Gov. Lincoln Chafee (I) of Rhode Island. Here’s hoping he finally sees the light.
Today, the Arizona Republic covered Gov. Jan Brewer’s outrageous, not-yet-filed lawsuit that calls the state’s voter-enacted medical marijuana law into question. Gov. Brewer alleged a major reason for the suit was fear that state employees could be in jeopardy. This claim was disingenuous given that Arizona U.S. Attorney Dennis Burke’s letter hadn’t mentioned state employees, and Brewer didn’t even bother to ask him if they would be at risk.
Apparently, reporter Mary K. Reinhart was more resourceful than Gov. Brewer. She spoke to U.S. Attorney Burke, who said "We have no intention of targeting or going after people who are implementing or who are in compliance with state law. But at the same time, they can't be under the impression that they have immunity, amnesty or safe haven." Burke also said they plan to focus drug enforcement on cartels and major trafficking, and that they have no intention to prosecute state employees.
This sounds like, in practice, the Arizona U.S. Attorney plans to abide by the 2009 Ogden memo that advises against targeting those in clear and unambiguous compliance with state laws, and by prior statements by U.S. Attorney General Eric Holder and President Barack Obama.
In practice, as MPP has reminded lawmakers, the federal government has not been targeting those dispensaries that are state-registered, complying with state law, and operating in states with clear regulations and registration requirements. There have been no raids on dispensaries or licensed producers in New Mexico, Colorado, or Maine.
We hope this marks the beginning of the end of the scare tactics from U.S. Attorneys. We also believe that any alleged violation of state law should be up to state — not federal — law enforcement officials and/or courts to consider.
Join in the campaign to ensure the federal government does not interfere with state medical marijuana laws by asking your representative in Congress to support three bills in Congress that would provide legal protection to those complying with state law.