Federal Courts

RSS Feed for this category

Medical Marijuana Update

Dispensary wars continue in California, a package of restrictive bills passes in Michigan, and DC's long-awaited dispensaries are a step closer to opening.

California

Last Tuesday, a Sacramento dispensary operator pleaded guilty to federal drug charges. Bryan Smith, 28, had operated R&R Wellness Center that was first raided by local law enforcement and then turned over to the feds to prosecute. He and his colleagues got caught with more than 400 marijuana plants and $256,000 in cash. He agreed to a sentence of not less than five years in federal prison.

Also last Tuesday, Oakland Mayor Jean Quan said the feds should back off from trying to run Harborside Health Center out of business. The statement came in court filings ahead of a court date set for Thursday.

Last Thursday, two Bakersfield dispensaries sued Kern County, claiming they spent a total of $99,000 to set up under state and local laws, only to have the county fine them $100,000 for doing it. A third dispensary sued earlier, seeking the return of $280,000 in fines.Kern County passed an ordinance in 2009 removing restrictions on where medical marijuana dispensaries could operate. Under the new ordinance, dispensaries could operate anywhere in unincorporated areas except within 1,000 feet of a school. But last year, the county adopted two new ordinances: one banning cultivation of medical marijuana, and the other banning marijuana collectives from unincorporated areas, to take effect 30 days after adoption. The dispensaries want the county to pay for changing the rules on them and they want an end to efforts to ban them.

Last Friday, Murrieta officials shut down the Diamond Star Remedies dispensary for alleged code violations. The dispensary owner, John Szwec, said he had applied for a business license but been denied. Two other dispensaries -- Cooperative Medical Group and Greenhouse Cannabis Club -- that attempted to operate in the city have also since shut their doors.

On Tuesday, LA city officials said a referendum to keep most of the city's dispensaries had enough signatures to go to the voters. The Medical Marijuana Collectives Initiative Ordinance awaits verification of signatures, which could happen as early as January 2. At that point the Clerk will forward the initiative to the City Council, which can vote to make it law, call a special election, or place the matter before voters during the next scheduled election, which is May 21.Another referendum that would allow only 128 dispensaries has already been approved for a vote.

Also on Tuesday, Yuba County supervisors gave final approval to a medical marijuana ordinance. Growing on less than an acre would be limited to 12 mature plants with no more than six growing outdoors, and no more than 18 plants overall. Supervisors and grower advocates said in the long run, the ordinance should push growing out of residential areas and into more rural ones.

Also on Tuesday, the California Supreme Court said it had taken up the appeal of a Temecula dispensary. In City of Temecula v. Cooperative Patients Services Inc., the Riverside-based Fourth District Court of Appeal, Division Two, followed its pattern of denying an appeal from the clinic and upholding the city's preliminary injunction against its operation. But unlike others cases from that court, the vote was 2-1.

Colorado

Last Friday, three dispensaries in the town of Dacono sued to stay open. They asked the Weld County District Court to block the city's ban of marijuana-related businesses. Without legal protection, all three will have to shut down at the beginning of the new year. The town council passed a ban in June, but a petition drive will bring the issue to a vote next year. But it won't enable the dispensaries to stay open in the meantime.

On Monday, a medical marijuana grower sued the Larimer County sheriff after his 42 plants were destroyed. Kaleb Young was arrested and his plants and equipment seized during a drug raid even though he was in compliance with state law and had paperwork to prove it. He was acquitted of all criminal charges last year. His attorney, Rob Corry, said he would ask for $5,000 for each destroyed plant, based on sheriffs' estimates of the plants' value when they were seized. "Typically, the agency will preserve the plants as they're required to do under the (Colorado) constitution," Corry said. "Here, they just straight-up cut them down and destroyed them."

Massachusetts

Last Wednesday, a medical marijuana evaluation company said it has lost its lease after its landlord received negative feedback from local residents and businesses. California-based CannaMed had announced two weeks earlier that they would open a Framingham office by mid-month, but the building's owner, Jumbo Capital Management, terminated the lease after receiving letters from other tenants objecting to CannaMed moving in.

Michigan

Last Friday, the state legislature passed a package of bills adding restrictions to the state's medical marijuana law. HB 4834 says that registry cards will expire after two years, HB 4856 requires medical marijuana to be transported in the trunk of a car, and HB 4851 puts new limits on when doctors can recommend medical marijuana. Gov. Snyder (R) is expected to sign them, and they will take effect April 1 if he does.

Montana

On Tuesday, federal prosecutors agreed to drop six of eight charges against Chris Williams, who was set to be sentenced to 85 years or more after being convicted of marijuana cultivation and gun charges. Under the deal, the federal government dropped convictions for conspiracy to manufacture and possess with the intent to distribute marijuana; manufacture of marijuana; possession with intent to distribute marijuana; and three counts of possessing a firearm in furtherance of a drug trafficking crime. His convictions for one count of possessing a firearm in connection with drug trafficking and one count of possession with intent to distribute marijuana will stand. He faces a maximum term of five years for the distribution of marijuana charge and a mandatory minimum of five years -- and a maximum of life -- for the firearm-related charge. In return, he waives his right to appeal. He was a partner in Montana Cannabis, which was hit hard by DEA raiders in March 2011.

Washington, DC

On Tuesday, DC officials okayed the occupancy permits for the city's first medical marijuana cultivation center and dispensary. Medical marijuana is coming to the District; it's just taken 14 years since the voters approved it and three years since Congress stepped out of the way.

Medical Marijuana Update

Lots of action -- good, bad, and ugly -- in California this week, plus a Washington appeals court ruling that appears to clear the way for dispensaries. Let's get to it:

California

Last Tuesday, Humboldt County supervisors extended a moratorium on new dispensaries. The extension was the second one and lasts for one year. The county began the moratorium last December after the federal government began threatening local governments with legal action over medical marijuana-related ordinances.

Last Wednesday, an appeals court ruled a Rancho Mirage dispensary must shut down until the city's efforts to close it are resolved. Rancho Mirage Safe Access Wellness Center must close while the city's appeal of a Riverside County Superior Court judge's ruling allowing it to stay open is under consideration by Division Two of the Fourth District Court of Appeals, the court said, granting a request from the city.

Also last Wednesday, Palm Springs police put un-permitted dispensaries on notice that they must shut down or face fines that begin at $1,000 and rise to $5,000 for each week they remain open. Palm Springs is the only Coachella Valley city to permit the sale of medical marijuana, but it limits the number of available licenses to three. There are about 10 collectives in Palm Springs without a city permit. The city and the un-permitted collectives have battled with competing lawsuits, and no end is in sight.

Also last Wednesday, an appeals court held that medical marijuana use alone is not sufficient cause for removing a child, reversing a trial court order that the father undergo drug testing and parenting courses because of his medical marijuana use. The court found that, "Although father uses medical marijuana pursuant to a physician's recommendation, there is nothing in the record to indicate that he has a substance abuse problem." Accusing a parent of child abuse or neglect merely for using medical marijuana "without any evidence that such usage has caused serious physical harm or illness or places a child at substantial risk of incurring physical harm or illness is unwarranted and will be reversed," the court said.

Last Friday, Los Angeles activists handed in 70,000 voter signatures for a referendum that would regulate but not ban dispensaries in the city. "The Medical Marijuana Regulation and Control Act" is supported by Americans for Safe Access and a local committee and is a response to the city council's effort to ban all dispensaries. If the city fails to regulate the dispensaries, the referendum will be waiting.

On Monday, a new Murrieta dispensary was served notice of the city's moratorium on dispensaries. Diamond Star Remedies opened despite being denied a business license, and its operator, John Szwec, said he had plans to pave his lot and put up a permanent building as soon as the city is willing "to stop harassing and start following state laws." Murrieta city council voted in September to extend its moratorium for one year while it awaits a state Supreme Court decision on whether cities have the power to regulate medical marijuana dispensaries in their jurisdictions.

On Tuesday, Yuba County supervisors approved a progressive grow ordinance. The ordinance allows up to 18 plants to be grown on parcels of less than an acre, while up to 99 plants may be grown on parcels greater than 20 acres. The ordinance eliminates a misdemeanor provision for violators and instead allows penalties and gives the county the authority to remove marijuana that doesn't follow growing guidelines.

Also on Tuesday, the city of Concord moved closer to banning outdoor grows. The move comes after the council heard complaints about offensive odors from residential grows and the risk of robbery or theft. The city council voted unanimously to review the city of Moraga's ordinance and possibly follow the Moraga model, which bars outdoor cultivation and demands that indoor grows be hidden from view.

Also on Tuesday, Pittsburg city planners recommended a ban on dispensaries. Planning commissioners approved the ban on a 4-1 vote, with a final vote before the city council set for January 22. The city has had a two-year moratorium on dispensaries, which expires in April, while staff studied whether to permanently ban them.

Also on Tuesday, Mendocino County supervisors hired a San Francisco attorney to deal with the federal government's subpoena of the county's medical marijuana records. Supervisors announced after a closed-door meeting with county counsel that the board "has retained the legal services of William Osterhoudt of San Francisco to assist the county in representation regarding the subpoenas." The subpoenas from the US Attorney Office for Northern California seek "any and all records" for the county's medical marijuana cultivation ordinance from January 1, 2010 to the present, including those with third-party garden inspectors and Mendocino County Board of Supervisors. The county quit issuing permits under its program in March, when federal prosecutors threatened to file an injunction against the county's medical marijuana cultivation ordinance and seek legal action against county officials who supported it. The county has until January 8 to respond to the records request.

Also on Tuesday, Sonoma County supervisors rejected repealing the county's outdoor grow guidelines. The guidelines, in place since 2006, allow patients or caregivers to grow up to 30 plants in up to 100 square feet of space. Repeal would have meant reversion to the "state minimum" of six plants, but was voted down 5-0. Supervisors did agree to consider a proposal to ban the use of unoccupied residential buildings for grows and to establish a working group that would help the county shape its medical marijuana program.

Colorado

Last Friday, the state agency in charge of regulating dispensaries announced it is preparing a broad rewrite of the rules. The Department of Revenue's Medical Marijuana Enforcement Division, or MMED, said it will release a draft of the rewritten rules by December 28. The draft rules will be the subject of three public hearings beginning in January. "Based on industry feedback, and its own experience, the MMED has determined that the majority of the existing medical marijuana rules... are in need of amendment," MMED said.

Maine

On Monday, a state representative said he would introduce a bill to eliminate the categories that limit when medical marijuana can be authorized by a doctor. The proposed legislation would also allow any physicians to recommend medical marijuana, not just a few licensed to do so. Rep. Mark Dion (D-Portland) said he would submit the bill next month.

Montana

Last Thursday, a judge pushed back the trial date for medical marijuana provider and former University of Montana quarterback Jason Washington. He is accused of violating federal drug laws in a case arising from the federal crackdown on medical marijuana in Montana in early 2011. Washington and prosecutors now have a court date of January 14 and a January 3 deadline to reach a plea agreement. If that doesn't happen, Washington will become only the second medical marijuana provider in the state to stand trial. The other, Chris Williams, was convicted and is looking at up to 80 years. Five of Washington's co-defendants have already cut plea deals.

Washington

On Tuesday, an appeals court overturned the conviction of a Spokane dispensary operator. Scott Shupe opened the first dispensary in Spokane, only to be charged with and convicted of marijuana trafficking under state law. But the Division III Court of Appeals threw out the conviction, saying that Spokane Police did not have probable cause to search Shupe’s residence and business and that Spokane County prosecutors did not have sufficient evidence to justify Shupe’s convictions. But the opinion went further, and appears to have agreed with Shupe and that the law allows providers to sell marijuana to one person at a time rather than the state’s interpretation of providers selling only to one person, period.

Cato Policy Analysis and Forum on State Legalization and Preemption

http://stopthedrugwar.org/files/cato-institute.jpg
Cato Institute (cato.org)
The libertarian Cato Institute has published a Policy Analysis, "On the Limits of Federal Supremacy: When States Relax (or Abandon) Marijuana Bans." The author of the brief is Robert A. Mikos, professor of law and director of the Program in Law and Government at Vanderbilt University Law School. Mikos is speaking at a Cato forum tomorrow here in Washington, DC, as is former congressman and DEA chief Asa Hutchinson.

I haven't read Mikos's analysis yet, but the following excerpt gives a hint at what he might say tomorrow:

Using medical marijuana as a case study, I examine how the anti-commandeering principle protects the states' prerogative to legalize activity that Congress bans. The federal government has banned marijuana outright, and for years federal officials have lobbied against local efforts to legalize medical use of the drug. However, an ever-growing number of states have adopted legalization measures. I explain why these state laws, and most related regulations, have not been -- and cannot be -- preempted by Congress. I also develop a new framework for analyzing the boundary between the proper exercise of federal supremacy and prohibited commandeering.
 

It's not surprising that a professor friendly to Cato would take a friendly view toward state legalization measures. But Mikos is not the only one. Just today on a phone conference I participated in, a former prosecutor told us that his community sees the courts preempting the state laws as a reach and less than likely, though some DOJ officials want to try for it.

Hutchinson may see things differently, but who knows, maybe we'll be surprised. Perhaps he will have interesting insights to offer on the likely federal response. Hutchinson is a rarity among DEA types in being willing to come out and debate, and he has been known to make reasonable statements about the issue on occasion, though I'm sure we still disagree on most aspects of drug policy.

Should be an interesting talk -- check back at the link for video if you can't come out for it. In the meanwhile, you can read some of my own thoughts on the preemption question here, and a discussion with experts in our newsletter here.

Prohibitionists are Overstating Feds vs. State Marijuana Legalization Case to Media

A mostly great piece in Rolling Stone this weekend, "Obama's Pot Problem," missed the mark on the federal preemption question -- can the feds shut down Washington and Colorado's legalized regulation systems? Tim Dickinson wrote the following on that subject:

[T]he administration appears to have an open-and-shut case: Federal law trumps state law when the two contradict. What's more, the Supreme Court has spoken on marijuana law: In the 2005 case Gonzales v. Raich contesting medical marijuana in California, the court ruled that the federal government can regulate even tiny quantities of pot – including those grown and sold purely within state borders – because the drug is ultimately connected to interstate commerce. If the courts side with the administration, a judge could issue an immediate injunction blocking Washington and Colorado from regulating or taxing the growing and selling of pot – actions that would be considered trafficking under the Controlled Substances Act.
 

But a former Bush administration official quoted in the New York Times on Thursday, former DOJ civil division head Gregory Katsas, made the opposite prediction. Katsas was "skeptical" that a preemption lawsuit would succeed, according to the Times. Why? Perhaps because it's not just that the feds can't force states to criminalize drug possession, as Kevin Sabet selectively pointed out to Dickinson. It's also the case that they probably can't directly force the states to criminalize sales either. The Controlled Substances Act in fact leans against federal preemption of state drug policy, as pointed out in a law professors brief on preemption submitted in a California case this year.

Dickinson also pointed out that federal officials had used threats to prosecute state employees involved in implementing regulations for medical marijuana. In my opinion the US Attorney letters were deliberately vague -- scary enough to influence state officials, but in most if not all cases stopping short of explicitly making that threat. A better piece of evidence, I think, is that in 16 years of state medical marijuana laws, no federal prosecutor has ever tried to actually invalidate such a law in court, not even after the Raich ruling. Why not? They must not think they have a slam dunk case. And if preemption is not a slam dunk for medical marijuana, then it's not a slam dunk when it comes to legalization either, although there are additional arguments to throw against full legalization.

The reality is that no one knows how this will turn out if it goes to court. Raich established that federal police agencies can use their powers in medical marijuana states to continue to criminalize marijuana federally, justified by the Interstate Commerce Clause. But that is not the same as having the power to forbid states from granting exceptions to the states' own anti-marijuana sales laws, which in legal terms is what the regulatory frameworks do, and plenty of smart lawyers are skeptical that they can do that. This is not a slam dunk either way.

Outrage at Potential Sentence for Montana Medical Marijuana Grower [FEATURE]

Chris Williams is sitting in a private federal prison on the Montana prairie these days awaiting sentencing. If the federal government has its way, he won't be a free man again for three-quarters of a century, an effective life sentence for a middle-aged man like Williams.

Medical marijuana provider Chris Williams in happier days (facebook.com)
So, what did he do that merits such a harsh sentence? Did he murder someone? Did he rape, pillage, and plunder? No. He grew medical marijuana. And, as is not uncommon in Montana, he had guns around as he did so. Standing on firm conviction, he steadfastly refused repeated plea bargain offers from federal prosecutors, which could have seen him serving "only" 10 years or so.

Williams is one of the more than two dozen Montana medical marijuana providers caught up in the federal dragnet after mass raids in March 2011 savaged the state's medical marijuana community, including Montana Cannabis, one of the state's largest providers, where he was a partner. A true believer in the cause, Williams is the only one of those indicted after the federal raids to not cop a plea, and he was convicted on eight federal marijuana and weapons charges in September after being blocked from mentioning the state's medical marijuana laws during his trial.

It is the gun charges that are adding decades to his sentences. As is the case in drug raids where police come up against armed homeowners, or as was the case of Salt Lake City rap record label owner and pot dealer Weldon Angelos ended up with a 55-year sentence because he sometimes packed a pistol, the Williams case is one where the rights granted under the 2nd Amendment clash with the imperatives of the drug war.

Williams was not convicted of using his firearms or even of brandishing them, but merely of having legal shotguns present at the medical marijuana grow, which was legal under Montana law. Still, that's enough for the gun sentencing enhancements to kick in, and that's enough to cause a rising clamor of support for Williams as he faces a January sentencing date.

"The sentence shocks the conscience," said Chris Lindsey, a former business partner of Williams who is awaiting sentencing after pleading guilty to a federal marijuana conspiracy charge. "Look at (former Penn State assistant football coach) Jerry Sandusky. For 45 counts of child sexual abuse, he gets 30 years. Chris Williams is going to get three times that for being a medical marijuana provider. It doesn't make any logical sense," he told the Missoulian.

Williams supporters have created a Free Chris Williams Facebook page and are petitioning the White House through its We the People online petition program for a full pardon for him. The White House responds to petitions that achieve over 25,000 signatures; the Williams petition has managed to generate slightly more than 20,000 signatures in less than two weeks. Other petitions seeking clemency for Williams are at SignOn.org and Care2.com.

Williams and his supporters are not just relying on the kindness of the White House. He is appealing his criminal conviction to the 9th US Circuit Court of Appeals, and he is the lead plaintiff in a lawsuit that claims he and other medical marijuana providers were in compliance with Montana state law and the federal raid and subsequent prosecutions were an unconstitutional usurpation of state and local powers under the 10th Amendment. That amendment says powers not granted to the federal government by the Constitution and not prohibited by the states are reserved to the states or the people.

But legal experts said his chances for victory in the civil lawsuit were small, and he would still be saddled with the federal criminal conviction.

"The war on drugs is too sacrosanct a sacred cow for the courts to weigh in favor," said California marijuana attorney Robert Raich, who has argued and lost two marijuana cases at the Supreme Court. "I think we can make better progress by doing something other than filing lawsuits," he said in an interview with the Helena Independent Record.

Still, Raich said he sympathized with Williams' plight and added that the federal attack on Montana providers was among its harshest.

"Montana is the worst," he said. "The federal government has attacked medical cannabis with a vengeance in Montana more than any other state."

Williams' attorney in the civil suit, Paul Livingston, said he would press forward with the appeal even if his client is behind bars.

"He has been made a martyr," said attorney Livingston. "It's a very solid case, it is a case that needs to be decided and I think everyone would agree once they learn the facts of what happened," Livingston said.

Ironically, as Williams languishes behind bars contemplating spending the rest of his life in prison, Montana could become the next state to legalize marijuana. Medical marijuana activists there, frustrated by the legislature's gutting of their program last year and their inability to get that overturned this year, have filed papers to put a legalization initiative on the ballot in 2014. Even that wouldn't directly help Williams, but it would serve to further underline the senselessness of his sentence.

MT
United States

Chronicle DVD Review: Code of the West

DVD Review: Code of the West, directed by Rebecca Richman Cohen (2012, Racing Horse Films, 71 minutes)

In Code of the West, Emmy nominated filmmaker Rebecca Richman Cohen brilliantly tells the story of Montana's late medical marijuana wars. And now the film is itself part of the story; excerpts from it were played by the defense during the sentencing of Tom Daubert, a central figure in the film, and undoubtedly helped him escape the clutches of the federal Bureau of Prisons with an unanticipated sentence of five years' probation.

But we get ahead of ourselves. Montana's voter-approved medical marijuana program was small-scale and operating quietly for its first five years, but in 2009, when the Obama administration indicated it was not going to go after medical marijuana providers in states where it was legal, the scene exploded. Dispensaries blossomed across Big Sky County, and caravans crisscrossed the state signing up patients after, shall we say, sometimes less than adequate examinations by physicians.

Within two years, the backlash against medical marijuana and its excesses resulted first in a bill passed by the radical Republican legislature to totally repeal the 2004 voter initiative -- vetoed by Democratic Gov. Brian Schweitzer -- and then in a second bill that was as close to outright repeal as you could come without calling it that. Schweitzer let that one stand, effectively wiping out the state's booming industry.

Then, as the legislature was deliberating that spring, the feds struck. In a series of coordinated raids, DEA and FBI agents raided 26 Montana medical marijuana operations in one fell swoop, sending an even clearer signal that the state's medical marijuana glory days had come and gone.

Code of the West takes you behind the scenes during that contentious year at the state house, featuring interviews with medical marijuana patients and providers, state law enforcement and legislative officials, and concerned citizens convinced that medical marijuana was going to turn their children into stoners and their state into a laughing stock.

Two of the central figures in the film are long-time state house lobbyist Tom Daubert, who ran the 2004 medical marijuana initiative and later formed Montana Cannabis, one of the state's larger providers, and Daubert's partner in Montana Cannabis, Chris Williams. Both ended up being indicted on federal marijuana trafficking charges -- this came after the period covered by the film -- and while Daubert copped a plea to earn probation, Williams refused to bend, was convicted on marijuana and weapons charges (because they had shotguns at their grows) and is now facing an 80-year mandatory minimum federal prison sentence.

"Even now, the DEA could come kick our door in and arrest us all," Williams says presciently in the film.

Cohen succeeds at portraying the opposition to medical marijuana. But while Daubert may diplomatically
praise opponents' sincerity and while Cohen takes pains to portray them with a certain degree of sympathy, they don't come off well in my book. Rock-ribbed Republicans like House Speaker Mike Milburn come off as earnest culture warriors, while the conservative Billings church ladies of Safe Kids Safe Communities, the main backlash group, come off as, well, conservative church ladies.

And not only do the Republicans and the church ladies come off as mean and pinched, they lie through their teeth about medical marijuana. (Not to mention having allies who worry about marijuana demons.)

"We stand to lose a whole generation of kids to medical marijuana," declaimed Safe Kids Safe Communities' Cherrie Brady, trumpeting a favorite opposition theme that medical marijuana was leading to skyrocketing teen pot use. The numbers actually show a slight decline.

Speaker Milburn, while attempting to appear earnest and statesmanlike, was also capable of throwing Reefer Madness-style rhetorical bombs.

"Children are prostituting themselves to gain access to drugs and this problem happened because of medical marijuana," he dared say with a straight face "These people who are medicating, they're hippies and the children of hippies."

And one final example of what we're up against. When the 2011 repeal bill passed the state Senate, the Safe Kids Safe Communities ladies were overjoyed. How overjoyed?

"All of the angels are flying up to the ceiling singing hosannas for this repeal," one gushed.

Code of the West is both a civics lesson -- this is how laws get made and unmade -- and a cinematographic pleasure. Scenes of state capital hallway lobbying and floor speechifying are intercut with glorious Montana landscapes. The film is a pleasure to watch and an important intervention in a still-running battle.

While the film ends with the federal raids of spring 2011 and the legislative follies that resulted in repeal-in-all-but name, the story doesn't end there. The worries Williams and Daubert expressed in the film about possible federal prosecution after the raids were all too true. Both were indicted on marijuana cultivation and trafficking charges by the feds, and while Daubert walked away with only probation, Williams now looks likely to become another medical marijuana martyr.

Cohen knows she stopped filming in the middle of the story, and is now working on a Kickstarter campaign to raise the $30,000 she needs to do an update. And it's not just the trials. An effort to undo last year's gutting of the program failed at the polls in November, and some medical marijuana activists have now decided to quit screwing around and just go for out and out legalization. They've already filed a ballot initiative for 2014.

There's likely to be an updated version of Code of the West in a few months.  But the current version is powerful, enlightening, and beautiful. Watch it now.

MT
United States

Marijuana Legalization: What Can/Will the Feds Do? [FEATURE]

In the wake of last week's victories for marijuana legalization in Colorado and Washington, everyone is waiting to see how the federal government will respond. But early indications are that we may be waiting for awhile, and that the federal options are limited.

How will the feds respond to legalization? (justice.gov)
While the legal possession -- and in the case of Colorado, cultivation -- provisions of the respective initiatives will go into effect in a matter of weeks (December 6 in Washington and no later than January 5 in Colorado), officials in both states have about a year to come up with regulations for commercial cultivation, processing, and distribution. That means the federal government also has some time to craft its response, and it sounds like it's going to need it.

So far, the federal response has been muted. The White House has not commented, the Office of National Drug Control Policy has not commented, and the Department of Justice has limited its comments to observing that it will continue to enforce the federal Controlled Substances Act.

"My understanding is that Justice was completely taken aback by this and by the wide margin of passage," said Eric Sterling, former counsel to the House Judiciary Committee and currently the executive director of the Criminal Justice Policy Foundation. "They believed this would be a repeat of 2010, and they are really kind of astonished because they understand that this is a big thing politically and a complicated problem legally. People are writing memos, thinking about the relationship between federal and state law, doctrines of preemption, and what might be permitted under the UN Single Convention on Narcotic Drugs."

What is clear is that marijuana remains illegal under federal law. In theory an army of DEA agents could swoop down on every joint-smoker in Washington or pot-grower in Colorado and haul them off to federal court and thence to federal prison. But that would require either a huge shift in Justice Department resources or a huge increase in federal marijuana enforcement funding, or both, and neither seems likely. More likely is selective, exemplary enforcement aimed at commercial operations, said one former White House anti-drug official.

"There will be a mixture of enforcement and silence, and let's not forget that federal law continues to trump state law," said Robert Weiner, former spokesman for the Office of National Drug Control Policy (ONDCP). "The Justice Department will decide if and at what point they will enforce the law, that's a prosecutorial decision the department will make."

Weiner pointed to the federal response to medical marijuana dispensaries in California and other states as a guide, noting that the feds don't have to arrest everybody in order to put a chill on the industry.

"Not every clinic in California has been raided, but Justice has successfully made the point that federal law trumps," he said. "They will have to decide where to place their resources, but if violations of federal law become blatant and people are using state laws as an excuse to flaunt federal drug laws, then the feds will have no choice but to come in."

Less clear is what else, exactly, the federal government can do. While federal drug laws may "trump" state laws, it is not at all certain that they preempt them. Preemption has a precise legal meaning, signifying that federal law supersedes state law and that the conflicting state law is null and void.

"Opponents of these laws would love nothing more than to be able to preempt them, but there is not a viable legal theory to do that," said Alex Kreit, a constitutional law expert at the Thomas Jefferson School of Law in San Diego who co-authored an amicus brief on preemption in a now mooted California medical marijuana case. "Under the anti-commandeering principle, the federal government can't force a state to make something illegal. It can provide incentives to do so, but it can't outright force a state to criminalize marijuana."

An example of negative incentives used to force states to buckle under to federal demands is the battle over raising the drinking age in the 1980s and 1990s. In that case, Congress withheld federal highway funds from states that failed to raise the drinking age to 21. Now, all of them have complied.

Like Weiner, Kreit pointed to the record in California, where the federal government has gone up against the medical marijuana industry for more than 15 years now. The feds never tried to play the preemption card there, he noted.

"They know they can't force a state to criminalize a given behavior, which is why the federal government has never tried to push a preemption argument on these medical marijuana laws," he argued. "The federal government recognizes that's a losing battle. I would be surprised if they filed suit against Colorado or Washington saying their state laws are preempted. It would be purely a political maneuver, because they would know they would lose in court."

The federal government most certainly can enforce the Controlled Substances Act, Kreit said, but will be unlikely to be able to do so effectively.

"The Supreme Court said in Raich and in the Oakland Cannabis Buyers Club cases that the federal government has all the power in the world to enforce the Controlled Substances Act," Kreit said, "and if they wanted to interfere in that way, they could. They could wait for a retail business or manufacturer to apply for a license, and as soon as they do, they could prosecute them for conspiracy -- they wouldn't even have to wait for them to open -- or they could sue to enjoin them from opening," he explained.

"But you can only stop the dam from bursting for so long," Kreit continued. "In California, they were able to stop the dispensaries at the outset by suing OCBC and other dispensaries, and that was effective in part because there were so few targets, but at a certain point, once you've reached critical mass, the federal government doesn’t have the resources to shut down and prosecute everybody. It's like whack-a-mole. The feds have all the authority they could want to prosecute any dispensary or even any patients, but they haven't been effective in shutting down medical marijuana. They can interfere, but they can't close everybody down."

As with medical marijuana in California, so with legal marijuana in Colorado and Washington, Kreit said.

"My guess is that if the feds decided to prosecute in Colorado and Washington, it would go similarly," he opined. "At first, they could keep people from opening by going after them, either enjoining or prosecuting them, but that strategy only works so long."

"I think the career people in Justice will seek to block Colorado and Washington from carrying out the state regulatory regime of licensing cultivation and sales," Sterling predicted. "A lower court judge could look at Raich and conclude that interstate commerce is implicated and that the issue is thus settled, but the states could be serious about vindicating this, especially because of the potential tax revenue and even more so because of the looming fiscal cliff, where the states are looking cuts in federal spending. The states, as defenders of their power, will be very different from Angel Raich and Diane Monson in making their arguments to the court. I would not venture to guess how the Supreme Court would decide this when you have a well-argued state's 10th Amendment power being brought in a case like this."

"Enjoining state governments is unlikely to succeed," said Kreit. "Again, the federal government has taken as many different avenues as they can in trying to shut down medical marijuana, and yet, they've never argued that state laws are preempted. They know they're almost certain to lose in court. The federal government can't require states to make conduct illegal."

At ground zero, there is hope that the federal government will cooperate, not complicate things.

"We're in a wait and see mode," said Brian Vicente, executive director of Sensible Colorado and co-director of the Amendment 64 campaign. "It's our hope that the federal government will work with Colorado to implement this new regulatory structure with adequate safeguards that make them comfortable the law will be followed."

While that may seem unlikely to most observers, there is a "decent chance" that could happen, Vicente said. "Two mainstream states have overturned marijuana prohibition," he said. "The federal government can read the polls as well as we can. I think they realize public opinion has shifted and it may be time to allow different policies to develop at the state level."

The feds have time to come to a reasonable position, said Ethan Nadelmann, executive director of the Drug Policy Alliance.

"There is no need for a knee-jerk federal response, since the states are not required to create a regulatory scheme quickly," he said. "And while anti-marijuana forces more or less captured the drug czar's office early in Obama's first term, they're at odds with other people in the White House and the Obama administration whose views may be closer to our own. I think the White House will be the key. It's very likely that the fact that Attorney General Holder said nothing about the initiatives this fall, unlike two years ago, was because of the White House. I don't mean the drug czar's office; I mean the people who operate with respect to national politics and public policy."

Sterling disagreed about who is running drug policy in the Obama administration, but agreed that the feds have the chance to do the right thing.

"Given the large indifference to drugs as an issue by the Obama administration, its studious neglect of the issue, its toleration of an insipid director of ONDCP, its uncreative appointment of Bush's DEA administrator, it's clear that nobody of any seniority in the Obama White House is given this any attention. Unless Sasha and Malia come home from school and begin talking about this, it won't be on the presidential agenda, which means it will be driven by career bureaucrats in the DEA and DOJ," he argued.

That's too bad, he suggested, because the issue is an opportunity for bold action.

"They should respond in a vein of realism, which is that this is the future, the future is now," he advised. "They have an opportunity with these two different approaches to work with the states, letting them go forward in some way to see how they work and providing guidance in the establishment of regulations that would let the states do this and ideally minimize the interstate spillover of cultivation and sales."

"As part of that, they should ideally move to rewrite the Controlled Substances Act and begin working in the UN with other countries to revise the Single Convention on Narcotics. Our 100-year-old approach is now being rejected, not simply by the behavior of drug users, but by the voters, many of whom are not drug users," Sterling said. "That would be a way that a wise, forward-thinking, statesman-like public official should respond."

That would indeed be forward-thinking, but is probably more than can be reasonably expected from the Obama White House. Still, the administration has the opportunity to not pick a fight with little political upside, and it has time to decide what to do before the sky falls. Marijuana legalization has already happened in two states, and is an increasingly popular position. The federal government clearly hasn't been in the lead and it's not going to be able to effectively stop it; now, if it's not ready to follow, it can least get out of the way.

Feds Unsure What to Do About State Legalization

A Washington Post story by Sari Horwitz reports that federal officials don't know what they are going to do about marijuana legalization in Colorado and Washington:

"I really don't know what we're going to do," said one high-ranking law enforcement official involved in the decision who was not authorized to speak publicly.
 

Dept. of Justice headquarters, Washington, DC (gsa.gov)
Attorney General Eric Holder had ignored a letter signed by all the past DEA chiefs last September urging him to speak out against the ballot initiatives. That may have been a political decision to avoid losing Democratic support in Colorado, the article suggests:

"It was a battleground state," said [another] administration official, who spoke on the condition of anonymity because he was not authorized to talk publicly
.

Horwitz's otherwise good article repeated the same fallacy we have seen crop up in other news reports of late, the idea that states can't do this because of federal law, a fallacy that I predicted here and have already noted here. The article states:

The most likely outcome will be that the Justice Department will prevent the laws from going into effect by announcing that federal law preempts the state initiatives, which would make marijuana legal for recreational use, law enforcement sources said.
 

Perhaps it's just a typo, and I don't know what the sources told Mr. Horwitz, but no matter what the legal and practical outcome of all of this, it is not the case that DOJ can preempt a state's law by making an announcement about. They can ask a court to preempt the laws, and then the court will decide. Significant legal precedent indicates that Congress cannot force states to criminalize conduct they don't want to criminalize, anymore more than states can force Congress to lift such criminalization -- as I've pointed out, in 16 years of state medical marijuana laws, no federal prosecutor has ever tried to do so. Maybe they'll try now, and if so we'll see what the Supreme Court's inconsistent conservatives say and what the liberals say. But they've had plenty of incentive to go that route already, and for some reason haven't.

Not that the feds can't make a fight of things. As the medical marijuana battles show, they have ways to interfere. They can send vaguely threatening letters, implying without directly stating that state employees would be violating federal law by implementing regulations for marijuana, as US Attorneys in most medical marijuana jurisdictions have done. That could scare the governors, who could seek delays implementing the initiatives, which in turn would have to be addressed in court. The IRS could move against the new businesses, auditing and penalizing them under a tax rule that disallows most expense deductions for illegal enterprises. (The law bizarrely allows dispensaries to deduct the cost of marijuana itself, but not other things like payroll or rent.) They can make it hard for marijuana businesses to maintain relationships with banks. And of course they can raid any marijuana store that they choose to.

But none of that is the same as preempting the laws themselves. And none of it would stop people from possession marijuana whenever they want, legally under the states' laws, or in Colorado from growing it. This needs to be repeated as often as possible: Colorado and Washington's marijuana laws are different from federal marijuana law, but that doesn't mean they conflict with it; and not every conflict is legally impermissible. If federal law just preempted state law in that way, 18 states would not have medical marijuana today.

And the Fast Talking Has Started...

I posited yesterday that federal fast talking about the Colorado and Washington initiatives would start soon. It turns out that federal fast talking hasn't even needed feds to get started, a "Network Media Fail" analysis by Peter Guither demonstrates:

Some of the network media have been trying to cover the legalization of marijuana in Colorado and Washington and clearly are in catch-up mode, not really knowing how to talk about it. And they're completely thrown by the fact that the DOJ, for the most part, isn't coming right out and commenting. So they're all forced to turn to… Kevin Sabet.
 

Kevin is a former Office of National Drug Control Policy staffer -- Phil faced off with him in The Fix on Tuesday. He had a respectable level position at the agency, from what I understand, but he was not the drug czar or near it, and he doesn't work at ONDCP now. Pete questions why media would think he knows what's going on behind the scenes or why we should think he does.

I'll just comment on two things from the ABC article by Christina Ng that Pete highlighted:

"When you have the governors of both states [opposing it] as well as the president and Congress, who has already determined that marijuana is illegal, this is not going to be a walk in the park for marijuana enthusiasts," Sabet said. [...]
 

That is an inaccurate characterization by Kevin of the positions of the governors. Colorado Gov. John Hickenlooper opposed the initiative, and according to the Denver Post is speaking with federal officials to assess their intentions -- Eric Holder, head of all DOJ, not ONDCP. But Hickenlooper also told the Post that "[y]ou can't argue with the will of the voters" and they plan to move forward with it. Washington governor-elect Jay Inslee has also said that he'll respect the will of the voters.

The second is a paragraph that was not presented as a quote, so I don't know precisely what Kevin told Ms. Ng, but here it is:

In 2005, the Supreme Court by an 8-0 margin struck down a California law that legalized medical marijuana in the state. The Court said Congress had the power to criminalize marijuana under the Commerce Clause.
 

Raich v. Gonzales was actually 6-3, but more importantly, the court did not strike down California's medical marijuana law! What the court did was decline to limit the reach of federal law. There's a difference.

As I discussed yesterday, state and federal law can be different, but that doesn't mean they're in conflict. And not every type of conflict is legally impermissible. California's medical marijuana law is very much in effect -- the trouble there is to providers, not directly to patients, and it's from federal raids and other actions, and local zoning restrictions. Tellingly, no federal prosecutor in 16 years of state medical marijuana laws has ever tried to undo one of them in court.

Perhaps they'll try now with one of the legalization initiatives, but their prospects for success on that route are unclear. What seems most unlikely is that states would be forced to reverse not only their licensing provisions, but their elimination of penalties for users and some sellers; much less that federal agents, more limited in number than state and local police, would conduct the massive numbers of possession busts (or in Colorado home growing busts) needed to keep prohibition going at that level. That's why the medical marijuana laws work.

In the meanwhile, police and prosecutors in Washington have more or less confirmed the walk in the park beginning December 6th.

Supreme Court Hears Drug Dog Cases

The US Supreme Court Wednesday heard oral arguments in a pair of cases out of Florida involving the use of drug sniffing dogs. One case is about whether it is legal to use drug dogs to sniff around the outside of homes without a warrant and the other is about how reliable the drug dogs actually are. The cases have the potential to either expand or restrict the use of drug dogs under Fourth Amendment jurisprudence.

The two cases are Florida v. Joelis Jardines, in which Jardines was arrested for marijuana cultivation after police without a search warrant brought a drug dog to his door, then returned with a search warrant after the drug dog alerted, and Florida v. Clayton Harris, in which Harris was arrested on methamphetamine charges after a drug dog alerted on his vehicle, but was stopped again two months later in the same vehicle and the same drug dog alerted, but no drugs were found.

In both cases, the Florida Supreme Court held that the drug dog searches were illegal, in Jardines because it was a warrantless search of a home and in Harris because it didn't find sufficient evidence of the drug dog's reliability. In both cases, the state of Florida appealed.

The Jardines case raises the issue of whether homes are subject to a higher Fourth Amendment standard than automobiles in traffic, luggage being sniffed on a conveyer belt, or packages being sniffed at a package delivery service. The Supreme Court has upheld the warrantless use of drug dogs in those cases, but has been inclined to grant greater protections to the sanctity of the home, rejecting, for example, the use of thermal imaging equipment to detect marijuana grow operations.

Gregory Garre, arguing for the state of Florida, ran into problems with some justices when he suggested that a drug dog sniff of a residence does not constitute a search under the law and thus no warrant is needed.

If that were the case, Justice Ruth Bader Ginsburg replied, wouldn't police be able to just walk down the street with a drug dog in "a neighborhood that’s known to be a drug-dealing neighborhood, just go down the street, have the dog sniff in front of every door, or go into an apartment building? I gather that that is your position."

"Your Honor, they could do that," Garre said.

Justice Elena Kagan also questioned Garre's rationale that a drug dog sniff was somehow different from a technology that allowed police to see inside a home -- such as the thermal imaging the court had previously ruled against. If someone invented a "Smell-o-matic" machine, Kagan said, police would still need to get a warrant to use it to search the home.

Jardines' attorney, Howard Blumberg, argued that the thermal imaging precedent applied to drug dogs at a home as well. Using a drug dog outside a house was cut from the same cloth, he said.

"I would submit that would basically be the same thing as a police officer walking up and down the street with a thermal imager that's turned on," Blumberg said.

Justice Anthony Kennedy, often a deciding vote on the closely divided court, challenged Garre on his contention that people with contraband in their homes have no expectation of privacy.

"Don't ask me to write an opinion and say, 'Oh, we're dealing with contraband here, so we don't need to worry about expectation of privacy,'" Kennedy said.

But Kennedy was also reluctant to accept Blumberg's argument that when police are trying to find something people are keeping secret, it amounts to a search under the meaning of the Fourth Amendment.

"To say our decisions establish that police action which reveals any detail an individual seeks to keep private is a search: that is just a sweeping proposition that in my view, at least, cannot be accepted in this case. I think it's just too sweeping and wrong,’" Kennedy said.

"I would add a few words to the end of that statement: Anything that an individual seeks to keep private in the home, and that's the difference," Blumberg replied.

In the Harris case, it was the reliability of drug dogs that was at issue.

"Dogs make mistakes. Dogs err," Harris's attorney, Glen Gifford told the justices. "Dogs get excited and will alert to things like tennis balls in trunks or animals, that sort of thing. There is no canine exception to the totality of the circumstances test for probable cause to conduct a warrantless search. If that is true, as it must be, any fact that bears on a dog's reliability as a detector of the presence of drugs comes within the purview of the courts."

Questions about the reliability of drug dogs have been on the rise in recent years. Last year, the Chicago Tribune analyzed three years of data from suburban police departments and found that alerts from dogs during roadside encounters led to drugs or paraphernalia just 44% of the time, and only 27% of the time for Hispanic drivers.

Justice Sonia Sotomayor cited an Australian study that found a drug dog only correctly identified drugs 12% of the time.

"I'm deeply troubled by a dog that alerts only 12% of the time," she said.

Garre responded that the study could be read differently, raising the number of correct alerts to as high as 70% -- if you included instances where the person the dog alerted to had used in been in contact with drug prior to the dog's alert.

And Justice Department attorney Joseph Palmore, arguing in support of Florida's position, told justices they should not let questioning of the dogs' skills go too far.

"I think it's critical... that the courts not constitutionalize dog training methodologies or hold mini-trials with expert witnesses on what makes for a successful dog training program," he said, citing the use of dogs in multiple search endeavors. "There are 32 K-9 teams in the field right now in New York and New Jersey looking for survivors of Hurricane Sandy. So, in situation after situation, the government has in a sense put its money where its mouth is, and it believes at an institutional level that these dogs are quite reliable."

The Supreme Court will decide the paired cases sometime next year.

Washington, DC
United States

Drug War Issues

Criminal JusticeAsset Forfeiture, Collateral Sanctions (College Aid, Drug Taxes, Housing, Welfare), Court Rulings, Drug Courts, Due Process, Felony Disenfranchisement, Incarceration, Policing (2011 Drug War Killings, 2012 Drug War Killings, 2013 Drug War Killings, 2014 Drug War Killings, Arrests, Eradication, Informants, Interdiction, Lowest Priority Policies, Police Corruption, Police Raids, Profiling, Search and Seizure, SWAT/Paramilitarization, Task Forces, Undercover Work), Probation or Parole, Prosecution, Reentry/Rehabilitation, Sentencing (Alternatives to Incarceration, Clemency and Pardon, Crack/Powder Cocaine Disparity, Death Penalty, Decriminalization, Defelonization, Drug Free Zones, Mandatory Minimums, Rockefeller Drug Laws, Sentencing Guidelines)CultureArt, Celebrities, Counter-Culture, Music, Poetry/Literature, Television, TheaterDrug UseParaphernalia, ViolenceIntersecting IssuesCollateral Sanctions (College Aid, Drug Taxes, Housing, Welfare), Violence, Border, Budgets/Taxes/Economics, Business, Civil Rights, Driving, Economics, Education (College Aid), Employment, Environment, Families, Free Speech, Gun Policy, Human Rights, Immigration, Militarization, Money Laundering, Pregnancy, Privacy (Search and Seizure, Drug Testing), Race, Religion, Science, Sports, Women's IssuesMarijuana PolicyGateway Theory, Hemp, Marijuana -- Personal Use, Marijuana Industry, Medical MarijuanaMedicineMedical Marijuana, Science of Drugs, Under-treatment of PainPublic HealthAddiction, Addiction Treatment (Science of Drugs), Drug Education, Drug Prevention, Drug-Related AIDS/HIV or Hepatitis C, Harm Reduction (Methadone & Other Opiate Maintenance, Needle Exchange, Overdose Prevention, Safe Injection Sites)Source and Transit CountriesAndean Drug War, Coca, Hashish, Mexican Drug War, Opium ProductionSpecific DrugsAlcohol, Ayahuasca, Cocaine (Crack Cocaine), Ecstasy, Heroin, Ibogaine, ketamine, Khat, Marijuana (Gateway Theory, Marijuana -- Personal Use, Medical Marijuana, Hashish), Methamphetamine, New Synthetic Drugs (Synthetic Cannabinoids, Synthetic Stimulants), Nicotine, Prescription Opiates (Fentanyl, Oxycontin), Psychedelics (LSD, Mescaline, Peyote, Salvia Divinorum)YouthGrade School, Post-Secondary School, Raves, Secondary School

StopTheDrugWar Video Archive