The Marijuana Policy Project and a coalition of advocacy and labor groups staged a demonstration today to protest the federal government's escalated attack on California's medical marijuana laws. A rally of medical marijuana patients and supporters took place in front of the Sacramento Federal Building and features state legislators, advocates, labor unions, and dispensary operators impacted by the recent Department of Justice (DOJ) crackdown in California.
Since the beginning of October, U.S. attorneys in California have released statements giving some medical marijuana businesses 45 days to close or risk prosecution. They have also issued threats to landlords, indicating that they will be prosecuted and their property seized if they rent to medical marijuana businesses. In addition, media outlets have been warned that advertising for medical marijuana businesses, a major source of media revenue in California, could lead to federal charges as well.
“The recent announcements by the U.S. attorneys of the intent to target the California medical marijuana industry are a waste of law enforcement resources and a betrayal of campaign promises made by President Obama,” said Rob Kampia, executive director of the Marijuana Policy Project. “Shutting down businesses that provide medical marijuana to patients, and threatening their landlords and media advertisers, will not have any effect on the illicit marijuana market. This crackdown will hurt the California economy, deprive state and local governments of vital revenue, and, most importantly, put patients in danger. Any attack on the ability to safely access medical marijuana is an attack on patients.”
“The Department of Justice and President Obama could easily stop this interference at any time and allow California to deal with medical marijuana in the way that is best for its residents,” said Kampia. “Since the federal government cannot be trusted to respect states’ rights when it comes to medical marijuana, concerned citizens should urge their congressional representatives to support H.R. 1983 – The States’ Medical Marijuana Patient Protection Act – which would remove the threat of federal intrusion in states that permit the medical use of marijuana.”
Sponsored by Rep. Barney Frank (D-MA) and co-sponsored by several prominent lawmakers, this bill would remove the ability of the federal government to enforce provisions of federal law that are contrary to states’ medical marijuana laws. The bill would also pave the way for changing the classification of marijuana in the Controlled Substance Act to Schedule III or lower. For more information on this bill, please visit our Federal Policy page.
A funny thing happened on Monday. The Department of Justice filed a brief regarding state medical marijuana laws in Arizona . . . and it was a good thing, and was met with appreciation from the medical marijuana movement! Seriously. After the disappointments of the vague, not very helpful Cole memo, and the expected but still disappointing DEA denial of marijuana’s medical value, it was great to see the Department of Justice (DoJ) doing the right thing regarding medical marijuana, even if it was only in a limited way.
As you may know, Arizona Governor Jan Brewer, last seen promoting states’ rights and vowing to fight on when it comes to illegal immigration, and her Attorney General, Tom Horne, had filed a suit as plaintiffs against the federal government, requesting permission to move ahead with Arizona’s medical marijuana program implementation. This was ridiculous, since no other governor has needed federal permission to move ahead with medical marijuana implementation, even though some others have also tried to use the red herring threat of federal action to slow implementation. Apparently, the DoJ also thinks Brewer’s claims are ridiculous, and it said as much in its withering Motion to Dismiss brief, in which it took apart each of the state of Arizona’s arguments, urging the court to dismiss the case. If the court dismisses the case, Brewer’s logical course of action would be to fully implement Arizona’s medical marijuana law, including licensing more than 100 dispensaries, though given her intransigence, that course of action is sadly not a given.
Throughout its brief, the DoJ basically said that the state of Arizona has no case and that plaintiffs Gov. Brewer and AG Horne have invented a controversy where none exists. Further, the brief notes that a state is not allowed to bring a case asking two sides to fight it out, without taking a position on the law in question, belying Gov. Brewer’s claims upon the suit’s filing of being a neutral party seeking “clarity.” The American judicial process simply does not work that way. In its brief, the DoJ’s criticism of the plaintiffs’ complaint was often direct and sometimes even slightly mocking, which was definitely appreciated by this reader.
The brief attacks the premise of Arizona’s suit in several ways. It says that the suit does not raise a substantial federal question (which it must in order to be heard first in federal court) because it asks for a declaratory judgment on the validity of a state law. It is amusing to watch the federal government explain Constitutional Law 101 to Gov. Brewer, noting that, “there is no federal jurisdiction of a suit by a state to declare the validity of its regulations despite possibly conflicting federal law” (p. 6). The brief also states directly that Arizona has not asserted any “actual, concrete controversy” in its complaint. The brief criticizes the plaintiffs for not identifying a controversy between the parties in the suit and notes the plaintiffs’ failure to take a side as a fatal flaw in the lawsuit, accusing the state of Arizona of “attempt[ing] to manufacture disputes among other parties” (p. 9). The brief criticizes Arizona’s decision to create twenty fictitious defendants, ten on one side of the law and ten on the other, states its doubts about the existence of the hypothetical defendants, and notes definitively that “parties cannot have ‘adverse legal interests’ necessary to establish a live controversy, when one party (particularly the plaintiff) professes to take neither side of the dispute” (p. 10). Finally, the brief denies that Arizona even has standing to raise such a claim, as it has not suffered any “injury in fact.” Basing standing on the idea that some Arizonans disagree about federal law’s effect on Arizona’s medical marijuana law will not work, nor will an unspecific suggestion about a “supposed risk that Arizona citizens will lose revenue or property” (pp. 11-12).
More importantly on a national level, this DoJ brief appears to affirm the following interpretation of the Ogden and Cole Memorandums, along with other relevant case law and actual enforcement: that there has been no demonstration that the federal government is interested in prosecuting state employees for implementing state medical marijuana programs and issuing dispensary licenses. The DoJ cites the lack of any “genuine threat that any state employee will face imminent prosecution under federal law” (p. 2) and notes that “plaintiffs can point to no threat of enforcement against the State’s employees” (p. 10). The brief notes that Arizona has no “concrete plan to act in violation of the Controlled Substances Act,” as it has refused to accept dispensary applications and issue licenses (an act that MPP believes, based on relevant court precedent, would clearly not be such a violation). The brief notes that Arizona was not able to produce any threat, generalized or specific, directed towards its state employees, and it points to the omission of any state employee threats in Arizona U.S. Attorney Dennis Burke’s letter on the issue (p. 14). The brief dismisses Arizona’s suggestion that Arizona state employees are subject to federal prosecution as “mere speculation” (p. 15). It sums up this argument when it says:
Plaintiffs identify no prior instances in which the federal government has sought to prosecute state employees for the conduct vaguely described in Plaintiffs’ complaint. Without evidence of such prior prosecutions, Plaintiffs cannot credibly show a genuine threat of imminent prosecution in this case. (p. 15)
This message from the DoJ is heartening, along with U.S. Attorney Burke’s clear statement that going after state employees “is not a priority for us, and will not be." This brief also comes on the heels of the statement of former U.S. Attorney and New Jersey Gov. Chris Christie, who said definitively about his decision to implement the state’s medical marijuana program:
I don’t believe the United States Attorney’s Office in New Jersey, given the narrow and medically based nature of our program, will expend what are significantly lessening federal law enforcement resources in the context of the federal budget, on going after dispensaries in New Jersey, our Department of Health or other state workers who are helping to implement this program.
These recent events all suggest that the Department of Justice is interpreting its guidance to mean that state employees can fully implement medical marijuana programs, like those in Arizona and Rhode Island, with no fear of prosecution. So let’s get it done, Governors Brewer and Chaffee! Time is wasting, and people are hurting and need their medicine now.
Yesterday, Gov. Christie announced that the wait is over for patients, and the medical marijuana program that has been on hold for months will finally move forward. He will instruct the New Jersey Department of Health and Social Services to begin implementation "as expeditiously as possible." This includes establishing the six alternative care centers that were approved last year.
Christie had left the program in limbo while he determined how to allow dispensaries and not attract attention from the federal government. This behavior has been mirrored in other states in response to letters from U.S. Attorneys intimating that they would no longer look the other way for anyone other than patients and individual caregivers, exposing the booming medical marijuana industry to serious risk. But Christie, himself a former U.S. Attorney, said that when he occupied that role, he would not have gone after dispensaries, as they are permitted in New Jersey's medical marijuana law. This, and the fact that the program is perhaps the strictest and narrowest in the country, led him to believe that neither the state nor the dispensaries would face federal prosecution.
The governor did not consult with the current federal attorney for New Jersey, but does not think the department will waste it's resources prosecuting state-approved, non-profit medical marijuana providers. Let's hope he is correct.
It is very heartening to see state leaders moving ahead with permitting and regulating the medical marijuana industry so that patients will not be forced to purchase their medicine from the illicit market. So far, the Department of Justice has been fairly decent about respecting state law with regard to dispensaries as long as those states have clear regulations for the industry. Other states, particularly Rhode Island, should not fear federal interference for implementing regulated dispensary systems.
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.