Arizona: Governor Finally Agrees To Fully Implement State’s 2010 Voter-Approved Medical Cannabis Law

Nearly 14 months after Arizona voters approved Proposition 203, the Arizona Medical Marijuana Act (AMMA), Republican Gov. Jan Brewer is finally directing the Arizona Department of Health Services to move forward to fully implementation the law.

A brief history: In November 2010 Arizona voters narrowly decided in favor of ballot measure 203, which removes state-level criminal penalties for the use and possession of up to 2.5 ounces of marijuana by patients who have written certification from their physician indicating that cannabis may alleviate their condition. The measure also mandated the state to adopt rules to govern the establishment of up to 125 nonprofit cannabis dispensaries, which would be legally authorized to produce and dispense marijuana to authorized patients on a not-for-profit basis.

In April 2011, the Arizona Department of Health Services formalized rules regarding an online ID-card registration for qualified patients. (More than 16,000 Arizona residents are now registered with the state to legally possess cannabis.) The Department also announced at that time that it would begin accepting applications from would-be dispensary operators by June 1. That deadline came and went, however, when Gov. Brewer — who had opposed the passage of AMMA — filed a lawsuit in federal court alleging that her administration’s compliance with the law’s state-licensing provisions would put state employees in danger of federal prosecution. In response to Gov. Brewer’s suit, attorneys representing the American Civil Liberties Union and the NORML Legal Committee co-authored a Motion to Dismiss the case.

Their efforts were successful. Earlier this month, a federal judge rejected Gov. Brewer’ challenge, asserting “[T]he Complaint does not detail any history of prosecution of state employees for participation in state medical marijuana licensing schemes. [and] fails to establish that Plaintiffs are subject to a genuine threat of imminent prosecution and consequently, the Complaint does not meet the constitutional requirements for ripeness. Therefore, Plaintiffs’ claims are unripe and must be dismissed.”

So, has Gov. Brewer finally gotten the message? Apparently so.

Today, Brewer’s office stated for the record that they would no longer challenge the state’s nascent law in court and instead will cooperate to see that the voters’ demands are once and for all fully enacted. Said the Governor in a press release:

“The State of Arizona will not re-file in federal court a lawsuit that sought clarification that State employees would not be subject to federal criminal prosecution simply for implementing the Arizona Medical Marijuana Act. Instead, I have directed the Arizona Department of Health Services to begin accepting and processing dispensary applications, and issuing licenses for those facilities once a (separate) pending legal challenge to the Department’s medical marijuana rules is resolved. … With our request for clarification rebuffed on procedural grounds by the federal court, I believe the best course of action now is to complete the implementation of Proposition 203 in accordance with the law.”

According to the website of the Arizona Department of Health, the department hopes to begin accepting applications for dispensaries this summer. To date, only three states — Colorado, Maine, and New Mexico — have granted licenses to allow for the state-sanctioned production and distribution of cannabis. (Several other states, including Delaware, New Jersey, Rhode Island, and Vermont, have enacted licensing legislation but to date have refused to issue any actual dispensary licenses.)

Under Arizona law, qualified patients may cultivate their own cannabis at home if they do not reside within 25 miles of an operating cannabis dispensary.

Additional information regarding Arizona’s medicinal cannabis program is available from the Arizona Department of Health Services here.

Justice Department Formally Threatens State-Licensed Colorado Cannabis Providers

In December I blogged about rumors that the Obama Justice Department was finalizing plans to expand its recent crackdown on medical cannabis producers and providers to include state-licensed facilities in Colorado. Today, the federal government made good on its threats.

According to numerous media reports, federal authorities today issued warning letters to 23 state-licensed dispensaries in Colorado stating that “action will be taken to seize and forfeit their property” if they continue operating within 1,000 feet of a school. The letters, sent by U.S. Attorney John Walsh, say that the dispensaries have 45 days from today to close shop or face federal sanction.

It states, in part:

“Federal law prohibits the manufacture, distribution, and possession of marijuana. … (This) dispensary is operating in violation of federal law, and the department of Justice has the authority to enforce federal law even when such activities may be permitted under state law. Persons … who operate or facilitate the operation of such dispensaries are subject to criminal prosecution and civil enforcement actions under federal law. Moreover, because the dispensary is operating within 1,000 feet of a school, enhanced federal penalties apply.

… This letter … constitutes formal notice that action will be taken to seize and forfeit (your) property if you do not cause the sale and/or distribution of marijuana and marijuana-infused substances at (this) location to be discontinued.”

While the federal government in recent months has utilized similar tactics to close down cannabis providers in California and has also coordinated DEA-led raids of dispensaries in other states, most notably in Washington and Montana, today’s efforts mark the first time that the federal authorities have specifically targeted facilities that are operating explicitly under a state license. (To date, only officials in the states of Colorado, Maine, and New Mexico have formally issued licenses to authorized cannabis providers.) It is estimated that that some 700 state licensed dispensaries are presently operating in Colorado.

Once again, the federal government’s actions belie the administration’s claim that it only intends to target those medical cannabis operators that “use marijuana in a way that’s not consistent with the state statute.” In this case, the operations in question were grandfathered in under local or state regulations. They are acting in compliance with state law and explicitly with the state’s permission.

Nonetheless, the imprimatur of the state apparently carries little if any weight with the Obama administration, whose first priority in Colorado appears to be matters of zoning enforcement.

Legislating medical marijuana operations and prosecuting those who act in a manner that is inconsistent with state law and voters’ sentiment should be a responsibility left to the state and local officials, not the federal government. It is time for this administration to fulfill the assurances it gave to the medical cannabis community and to respect the decisions of voters and lawmakers in states that recognize its therapeutic efficacy.

The Next State In The Federal Government’s Crosshairs Is Colorado

In recent months, the federal Justice Department has engaged in concerted efforts to crack down on the proliferation of medical cannabis related activities in states that allow for its therapeutic use under state law, including California, Montana, and Washington.

Now, according to a CBS News report, the next state on the federal government’s ‘hit list’ is Colorado — arguably the state with the most comprehensive and stringent statewide regulations governing medical cannabis activities. These regulations explicitly license state-authorized cannabis dispensaries, of which there are now some 700 operating statewide.

Nonetheless, the imprimatur of the state apparently carries little if any weight with the Obama administration at this time — despite promises (reiterated before Congress just last week by US Attorney General Eric Holder) that such prosecutions are “not a (federal) priority” and that the Justice Department only intends to target those entities who “use marijuana in a way that’s not consistent with the state statute.”

Predictably, today’s CBS special report tells a different story.

Crackdown On Colorado’s Medical Pot Business On The Horizon
via CBS News Denver

Federal authorities are planning to crack down on the medical marijuana business in Colorado on a large scale for the first time.

Warning letters will be going out to dispensaries and grow facilities near schools, CBS4 investigator Rick Sallinger has learned. So far it’s not clear how soon that will happen.

Dispensaries that receive the letters will be given 45 days to shut down or move operations. If they don’t comply, they will be shut down by the U.S. attorney in Colorado.

The dispensaries who are set to be targeted are the ones that are located within 1,000 feet of schools. That measurement is being used because that distance already appears in federal law as a factor in drug crime sentencing.

The move comes after the Justice Department sent out a memo clarifying that marijuana has been and remains illegal under federal law despite what has taken place with state regulations. Colorado is one of 16 states where medical marijuana laws have been approved.

Many of the state’s dispensaries that are closer than 1,000 feet to a school have already been approved to be there under local laws. They usually have been grandfathered in.

… Robert Corry, an attorney who represents dispensaries, said medical marijuana operations are now strictly regulated under Colorado state laws.

“The federal apparatus here has better things to do,” said Corry. “My reaction would be the federal government is essentially declaring war on the voters of our state (who) passed a Constitutional amendment.”

U.S. attorneys in California recently announced in a separate medical marijuana crackdown that they would be targeting landlords who rent retail space to dispensaries, as well as dispensary owners themselves.

Does anyone really believe that this is an appropriate use of scarce federal resources? Or that these actions are in any way consistent with Obama’s public pledge to cease utilizing “Justice Department resources to try and circumvent state laws on this issue?” I didn’t think so.

If the federal government is truly concerned about the diversion of
medical marijuana or its potential abuse in states that have authorized it then it would be better served to encourage — rather than to discourage — statewide and local efforts to regulate these actions accordingly. The Obama administration’s enforcement actions in California, Colorado, and elsewhere will only result in limiting adults’ regulated, safe access to cannabis therapy. It will also cost local jobs and needed tax revenue, and likely result in hundreds — if not thousands — of unnecessary criminal prosecutions.

Legislating medical marijuana operations and prosecuting those who act in a manner that is inconsistent with state law and voters’ sentiment should be a responsibility left to the state and local officials, not the federal government. It is time for this administration to fulfill the assurances it gave to the medical cannabis community and to respect the decisions of voters and lawmakers in states that recognize its therapeutic efficacy.

Fed’s Criterion For Busting Medical Marijuana Industry

To: DEA, HIDTA, Federal task force partners in California for internal law enforcement use only. Not for public use or circulation [Editor's note: Hah! Also, this memo is only applicable in California---not Colorado, New Mexico and Maine, where these states regulate the medical cannabis industry (whereas California does not, arguably opening the door to federal incursions and prosecutions).]

From: California United States Attorneys

This memorandum outlines factors that all four California U.S. Attorneys Offices (the USAOs) agree may render a particular marijuana case suitable for federal prosecution. Identification of these factors is intended to assist federal, state and local law enforcement agencies in determining whether a particular marijuana case has significant potential for federal prosecution and conducting investigations in a manner that develops the best evidence to support federal prosecution (Footnote 1). The USAOS will consider for federal prosecution cases investigated by federal, state or local law enforcement agencies that implicate federal interests as reflected in the factors. Cases investigated by federal agencies will generally be given priority over cases adopted from state or local investigations. The factors listed below are relevant to the USAOs consideration of whether a marijuana case should be prosecuted federally but the presence or absence of one or more of the factors will not guarantee or preclude federal prosecution in any case. In general the federal interest will be greater in prosecuting leaders and organizers of the criminal activity as opposed to lower level workers.

The memorandum is intended as prospective guidance only, is not intended to have the force of law and is not intended to, does not, and may not be relied on to create any right, privilege or benefit, substantive or procedural, enforceable by any person or entity against any type of the USAOs, DOJ or the United States.

1) Domestic distribution cases.
Federal prosecution of a case of domestic distribution of marijuana should generally involve at least 200 or more kilograms of marijuana and also include additional factors that reflect a clear federal interest in prosecution (Footnote 2—This guidance for domestic distribution cases does not apply to cases involving distribution within or smuggling into a federal prison.18 USC 1791). Typically the more marijuana above 200 kilograms the better the potential for federal prosecution. Domestic distribution cases involving quantities of marijuana below 200kilograms should demonstrate an especially strong federal interest or should not be prosecuted with marijuana distribution as the sole federal charge. Set forth below is a non-exhaustive list of factors that USAOs believe indicate a federal interest in a domestic distribution case.

*Distribution by an individual or organization with provable ties to an international drug cartel or a poly-drug trafficking organization.

*Distribution of significant quantities to persons or organizations outside California.

*Distribution by individuals with significant prior criminal histories.

*Distribution by individuals with provable ties to a street gang that engages in drug trafficking involving violent conduct.

*Distribution for the purpose of funding other criminal activities.

*Distribution near protected locations or involving underage or vulnerable people (e.g. in violation of 21 USC 859 persons under 21, 860 near schools, playground and colleges, 861 employment of persons under 18).

*Distribution involving the use or presence of firearms or other dangerous weapons including cases that would support charges under 18 USC 924c.

*Distribution generating significant profits that are used or concealed in ways that would support charges of federal financial crimes such as tax evasion, money laundering or structuring. Note: Generation of significant profits alone generally will not be viewed as a factor weighing in favor of federal prosecution.

*Distribution in conjunction with other federal crimes involving violence or intimidation.

2. Cultivation cases.

Federal prosecution of a marijuana case involving cultivation on non-federal or non-tribal land, indoor or outdoor, should generally involve at least 1,000 marijuana plants so that the quantity necessary to trigger the ten-year mandatory minimum sentence can be clearly proven and also include additional factors that reflect a clear federal interest in prosecution. Typically, the more marijuana above 1,000 plants, the better the potential for federal prosecution. Non-federal or non-tribal land cases involving quantities below 1,000 plants should demonstrate an especially strong federal interest or should not be prosecuted with marijuana cultivation as the sole federal charge. Federal prosecution of a marijuana case involving cultivation on federal or tribal land should generally involve at least 500 marijuana plants and also include additional factors that reflect a clear federal interest in prosecution. Cases on federal or tribal land involving quantities below 500 plants will be considered if they demonstrate a strong federal interest, if the cultivation has caused significant damage to federal or tribal lands or has occurred in an area of exclusive federal jurisdiction (Footnote 3– The USAOs will consider the totality of circumstances with respect to all marijuana plant quantities in these guidelines. For example, the presence of especially mature, large or robust plants will generally weigh in favor of prosecution while the presence of seedlings or immature plants will generally weigh against prosecution). Set forth below is a non-exhaustive list of factors that the USAOs believe indicate a federal interest that may justify federal prosecution of a marijuana case involving cultivation whether on federal, tribal or other lands.

*Cultivation causing significant environmental damage, risk to human health or interference with particularly sensitive land or significant recreational interests, ie damage to wilderness area or wildlife, danger to innocent families using a recreation area or use of toxic or dangerous chemicals.

*Cultivation by an individual or organization with provable ties to an international drug cartel or poly-drug trafficking organization.

*Cultivation of significant quantities on behalf or persons or organizations outside California.

*Cultivation by individuals with significant prior criminal histories.

*Cultivation by individuals with provable ties to a street gang that engages in drug trafficking involving violent conduct.

*Cultivation for the purpose of funding other criminal activities.

*Cultivation near protected locations or involving under-age or vulnerable people (eg,  in violation…

*Cultivation involving the use or presence of fire-arms, booby traps or other dangerous weapons including cases that would support charges under 18 USC 924c.

*Cultivation generating significant profits that are used or concealed in ways that would support charges for federal financial crimes such as tax evasion, money laundering or structuring. Note—generation of significant profits alone will not be viewed as a factor weighing in favor of federal prosecution.

*Cultivation in conjunction with other federal crimes involving violence or intimidation

3. Dispensary cases.

Given California state law, prosecution of marijuana stores or “dispensaries” purporting to comply with state law face additional challenges. Federal prosecution of a case involving a marijuana store should generally involve a) provable sales through seizures or records of over 200 kilograms or 1000 plants per year. b) sales clearly in violation of state law, eg sales to persons without legitimate doctors’ recommendations, side-sales occurring outside of the store or shipping to persons outside of California (Note—selling for profit, though a violation of state l aw, typically alone will not alone satisfy this requirement), and c) additional factors that reflect a federal interest in prosecution. Set forth below is a non-exhaustive list of such additional factors. Nothing herein should be taken as a limitation on investigation by federal law enforcement to determine the existence of these factors. However, search warrants or other more intrusive investigative techniques directed at marijuana stores should be closely coordinated with the USAOs.

*Marijuana “inventory” obtained from cultivation on federal or tribal land.

*Targets involved in cultivation or distribution outside of the dispensary that merits federal prosecution based on consideration of factors set forth in sections 1 and 2 above.

*Targets using profits from the dispensary to support other criminal activity.

*Store linked to physician providing marijuana recommendations without plausible legitimate justification, eg doctor on site providing recommendation with no on-site examinations or legitimate medical procedures.

*Targets have significant prior criminal histories.

*Targets have provable ties to a street gang that engages in drug trafficking involving violent conduct.

*Store operations involve the use or presence or firearms or other dangerous weapons including cases that would support charges under 18 USC 924.

*Store generates significant profits that are used/concealed in ways that would support charges for federal financial crimes such as tax evasion, money laundering or structuring. Note–generation of significant profits alone generally will not be viewed as a factor weighing in favor of federal prosecution

*Store operations in conjunction with other federal crimes involving violence or intimidation.

*Store employs minors under 18 and/or sells a significant portion of marijuana to minors under the age of 21 especially where evidence that minors aren’t using for medical purposes

4. Civil forfeiture.

The USAOs general preference is to pursue forfeiture through criminal forfeiture or civil forfeiture filed in parallel with a criminal case. Nevertheless circumstances may arise in which civil forfeiture alone is the best option. Those cases will generally involve one or more of the following:

*Significant forfeitable assets clearly traceable to marijuana trafficking in violation of federal criminal law that would merit federal prosecution based on consideration of factors set forth in sections 1-3 above.

*Significant forfeitable assets clearly traceable to non-marijuana related violations of federal law such as structuring or money-laundering. Large scale “medical marijuana” cultivation operations that 1) are operating in violation of state law 2) involve real property that has been the subject of a warning letter or similar prior notice or 3) involve real property that has been the subject of a prior forfeiture proceeding arising from marijuana cultivation or a property owner who has been a claimant in such proceedings or individual targets not subject to criminal prosecution eg fugitives or persons whose involvement in marijuana trafficking is too marginal to justify criminal prosecution including off-site land lords and non-resident owners falsely claiming ignorance of tenant’s marijuana trafficking.

DEA raids Washington marijuana dispensaries in cities that set marijuana as lowest enforcement priority.

Multiple news outlets are reporting DEA and local officials raiding over a dozen dispensaries in the Seattle-area counties of King, Thurston, and Pierce in Washington State.

The Olympian reports:

The Thurston County Narcotics Task Force served search warrants at five medicinal marijuana dispensaries Tuesday morning and shut them down, according to a police spokesman.

The News-Tribune reports:

Five dispensaries were targeted in Thurston County and five in Pierce County, law enforcement officials reported. So far, no arrests have been reported from the searches in Pierce and Thurston counties.

The warrants targeted locations that are suspected of not complying with state law on medical marijuana, Pierce County sheriff’s spokesman Ed Troyer said.

“The places we hit are not compliant with state law so we initiated enforcement,” he said. “There are facilities and people that are in compliance with the law that we did not hit.”

KOMO reports:

Medical marijuana activist group ‘Sensible Washington’ tells KOMO News searches have been conducted so far at Seattle Cannabis Co-op, Game Collective, Tacoma Cross, Lacey Cross and Seattle Cross among others.

KOMO News asked DEA spokeswoman Jodie Underwood if agents were serving search warrants on dispensaries in other counties as well and she acknowledged agents were serving several search warrants locally.

Remember, these raids are taking place in Tacoma, which just had an election last week on this very issue of marijuana law enforcement:

(Seattle Times) Tacoma voters easily passed citywide ballot Initiative No. 1 — the measure seeking to make “marijuana or cannabis offenses … the lowest enforcement priority” of the city.

After Tuesday night’s count, 65 percent of voters favored the measure, while 35 percent cast no votes.

And Seattle, which had made marijuana law enforcement its cops’ lowest priority in 2003 by a 58% vote:

(Seattle P-I) Since Seattle voters famously made the Emerald City a bit greener by mandating that cops mellow out when it comes to marijuana possession busts, a funny thing has happened.

Nothing. Nada. Nil. No crazy hopheads running amok with “reefer madness.” No groundswell of support to legalize the drug (at least no more than usual), and no discernible protest by law enforcement that a pro-drug message effectively has been sent — or received.

“I’d say it’s had little to no effect,” said [former] City Attorney Tom Carr, an outspoken opponent of Initiative 75, the 2003 ballot measure that directed Seattle police to make low-level pot busts their lowest priority. “And that’s good. It hasn’t been a problem. You can tell by the numbers.”

Seattle is so accepting of marijuana that the new city attorney, Pete Holmes, won’t even prosecute you for personal possession and believes marijuana should be legalized, as does the mayor, Mike McGinn.  Even the Seattle City Council is unanimous in their support for medical marijuana dispensaries.

The people of Washington State don’t seem to have as much problem with marijuana as the people of Washington, D.C.