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Safe Streets Alliance et al. v. John Hickenlooper, et al. – Good News, Bad News

  • by Keith Stroup, NORML Legal Counsel June 8, 2017

    C1_8734_r_xA ruling issued on June 7th by the US Court of Appeals for the Tenth Circuit, in response to a series of legal challenges to Colorado’s adult cannabis use regulations, includes both good news and bad news.

    The Good News

    Most importantly for the legalization movement nationwide, the appeals court rejected the argument raised by the states of Nebraska and Oklahoma that Amendment 64 in Colorado, the voter initiative that legalized and regulated the adult use of marijuana, was preempted by the federal Controlled Substances Act. That argument, made by these neighboring states, if accepted by the court, would have voided Amendment 64.

    It should be noted that this was not a definitive ruling on the federal preemption argument. Rather, it was a procedural ruling, finding that only the US Supreme Court has jurisdiction to hear disputes between the states. (The Supreme Court declined to consider a similar challenge in 2016.)

    In fact, it was only after the Supreme Court had rejected their motion that the two states elected to raise these same issues with the 10th Circuit, by filing a motion to intervene in the Safe Streets case.

    Also a big win, the Circuit Court rejected a similar attempt by a group of sheriffs and prosecutors from Colorado, Kansas, and Nebraska to use the US Controlled Substances Act and the Supremacy Clause of the US Constitution to enjoin the enforcement of Amendment 64. The court found that the Supremacy Clause “does not give rise to a private right of action.”

    Hopefully this will give pause to other anti-marijuana zealots out there who might wish to use the federal preemption argument to undermine the various state legalization laws.

    The Bad News

    The bad news is that the 10th Circuit did reinstate a civil RICO complaint filed by private landowners in Colorado against a state-licensed indoor cultivation center, alleging it had caused a noxious odor that damaged their property value. The appellate court remanded the case back to the US District Court for further proceedings to allow the plaintiffs to attempt to prove their RICO claims.

    While this is necessarily concerning to those in the state-legal cultivation industry, since the problems presented by the odors emanating from large grow operations is a theme which has been raised in several Colorado communities, it likely does not open the floodgates for every neighbor to bring a RICO suit against any cultivation center. Rather it likely will accelerate the adoption of the most effective technology by cultivation centers to minimize the odor of marijuana.

    In the court’s own words, “We are not suggesting that every private citizen purportedly aggrieved by another person, a group, or an enterprise that is manufacturing, distributing, selling, or using marijuana may pursue a claim under RICO. Nor are we implying that every person tangentially injured in his business or property by such activities has a viable RICO claim. Rather, we hold only that the Reillys alleged sufficient facts to plausibly establish the requisite elements of their claims against the Marijuana Growers here.”

    30 Responses to “Safe Streets Alliance et al. v. John Hickenlooper, et al. – Good News, Bad News”

    1. Dain Bramage says:

      So, let’s see, must be time to start RICO-ING the shit out of pizza stores, coffee shops, restaurants, bars, and anyone wearing perfume, cologne, or deodorant. Fragrance is now a crime in and of itself? Then nothing anywhere is legal. Of course, the bar was set at the lowest point already when cannabis became illegal.

      How deep down the rabbit hole must we go before we awaken from this fevered delirium?

      This kind of madness is why I sometimes go by the moniker “Dain Bramage.” It requires all my mental powers to survive and transcend and immunize myself against a society constructed entirely of deceit, marketing, and propagandist illusions.

      Protect your mind!

    2. mexweed says:

      Like possibly many other readers here, I am perplexed that anyone would object to the odor of cannabis plants. Other than that it would “damage property value”– bigots would not pay as much to buy a house near there, hm. follow the money.
      .
      Think for a moment, if cannabis is legalized everywhere (and the MICRODOSAGE COMPROMISE: substitute 25-mg single vapetokes for the halfgram hot burning overdose) we’ll be spared the truly noxious Side-Stream $moke from 700-mg designed-to-overdose commercial nicotine $igarettes.

    3. Julian says:

      Thank you Keith!
      Allow me to post a collective “Hell Yeah! Keith is back on the blog!!” I missed that joint puffin image and our founder’s perspective.

      This is GREAT news. The Supremacy Clause was shot down?! YES!

      And now all we have to worry about is RICO? Hah! Ol no-regard-Beauregard is too busy beggin The president to resign and dodging subpeonas to worry about prosecuting RICO cases, at least for the time being. But thats whatcha get for being obsequious with the mad King. You can run in Alabama but you sho caint hide!!
      Great to see you back, brother.

    4. dave says:

      Honestly, When are all these anti-American prohibitionists going to die…..The anti-human idiots have to be loosing numbers by now, when are they going to die off and fade away?

    5. MartinMorero says:

      Some varieties of cannabis have a skunky smell some people may find just as bad as that of a real skunk.

      I remember going for a walk in Haarlem and getting a whiff of cannabis. I was across the street from some industrial buildings, warehouses or factories. It wasn’t all the time but must have been at the times when the grow was venting and the smell not totally masked. Most of the time it was undetectable. If you went back at the same time the next day to see if it wasn’t just your imagination and smelled it again the grow has been given away. Don’t know who they were or exactly where the grow was, only that it was in the area, but it gave the grow away.

      I didn’t think the faint occasional scent of it was objectionable. Production is still illegal in Holland.

      If you don’t want to get raided because you’re out of favor with the current political administrators then you don’t want to give yourself away to the authorities.

    6. guest says:

      But cow and horse feces totally doesn’t have a scent at all…

      • Mark Mitcham says:

        @ guest,
        Ha! Excellent point. I’ve got four words for Hickenlooper: “National Western Stock Show.”

    7. Article 4 Section 1: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.

      Article 4 Section 2: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

    8. PD Frank says:

      Voters in the area of Colorado where the prohibitionist farmers live voted last November to continue cultivation and recreational sales by a 57% to 43% margin. If anything property values in the Pueblo area are going up due to the “green rush” in and around Pueblo. The so-called “safe streets” Alliance will ultimately fail in their endeavor to get legalization shut down.

    9. Julian says:

      Relax fellow NORML people; theres something more rotten in the state of our federal politics than the smell of prosecuting RICO cases. Even the language in the case suggests property damages for industrial smell will not be a recurring use of RICO. Grow operations will follow some new code, some contactors will make some money and that will be that. The marijuana industry has to follow more unique regulations. Big surprise. The slippery slope to prosecuting other industries for property damage created by real, measurably noxious smells is ridiculous and dully noted by the Judge’s decision. (If poor people next to landfills and fracking operations only kept records and had a good lawyer pro bono…)

    10. Julian says:

      On to other stories about stepping in something that actually stinks:
      Sessions being denied resignation means Trump wants to fire him in a timely way to distract us from the next big break in the Russian investigation. This pathetic “distraction” works more to distract a hostile prohibitionist administration from ongoing advances in marijuana policy.
      Appointing Guliani after Sessions is gone is not going to be easy, and the lack of appointments in general is part of an anarchist strategy from Chief Grim Reaper Bannon:

      https://www.leafly.com/news/politics/introducing-haymaker-leaflys-new-politics-culture-column-week-jeff-sessions?utm_source=Sailthru&utm_medium=email&utm_campaign=B2C%20NEWSLETTER%202017-06-10

      More likely, Rosenstein will become AG when Sessions gets the can. Leafly’s new political Haymaker column points out that Rosenstein stopped prosecuting cannabis cases when he was top prosecutor in Baltimore after Maryland legalized mmj, meaning he respects states rights.
      Whats going to be interesting is Rosenstein already has to recuse himself from investigating the Russia-Gate since he appointed a special councel and he himself is under investigation. Trump got neutered and theres nothing he can do about it or fire his way out of it. Rosenstein planned it that way to protect himself, knowing Sessions wanted out of this $hitstorm early on.
      Besides, Guliani would not likely pass confirmation and I dont think even he wants the job anymore. Who wants to work for a sociopath who cant even distinguish a supportive ruse of a disagreement from disloyalty? Ive heard of shooting the messenger, but this sick, rotten orange shoots his getaway driver. If yer gonna be dumb ya gotta be tough…
      Meanwhile as the $hitstorm continues, Connecticut, Vermont and even Delaware are in the race for legislatively enacted marijuana legalization. Game on.

      • MSimon says:

        Love the Russian investigation. I can’t wait to see some evidence.

        OTOH Loretta obstructed justice. I can’t wait until she is a target of investigations.

        OH. Yeah. Sessions is an idiot. At least 50% of Republicans support medical. He wants to attack his base?

        • Julian says:

          Surrounded by water yet the fool is thirsty:

          https://www.google.com/amp/s/amp.businessinsider.com/comeys-testimony-points-to-trumps-collusion-with-russia

          Let me ask you something MSimon; When a Presidential candidate goes on live camera, says “Russia are you listening” and pleads for a hostile nation to hack his opponents emails, is it the fear of your own failure as an American adult that causes you to deny the very obvious evidence of Russian collusion in front of us all?
          Once we understand that this treason of Trump and Russia is true, dating back to his deals with Russian money launderers to keep the lights on at Trump Tower, we can begin to see the collusion and treason with every bad billionaire out to sell our Democratic Republic to the highest bidder: Sheldon Adelson, Charles & David Koch, the Mercers, John Paulsen and a whole bunch of @$$ wipe Trump enablers like yourself.
          You are participating in the collusion. Your cowardly, treasonous denial is an accomplice threat to our national security. Only accepting the truth and making your Representatives accept it to can begin to save your battered abuse-loving soul.

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