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.

Congressman Polis’ Grills Attorney General Holder About Fed’s Medical Marijuana Policies

Update: Huffington Post article and C-Span video.

I’ve spoken to two reporters today inquiring about Colorado Congressman Jared Polis’ medical cannabis-related questions to Attorney General Holder at a congressional committee hearing that was otherwise a ‘bloodbath’ for Holder—getting grilled about the guns and Mexico fiasco—when Polis, who is not a member of the Judiciary Committee, was allowed to ask Holder two questions about medical cannabis enforcement.

Generally written…

Polis first wanted assurances that Colorado’s medical cannabis dispensaries/cultivation centers compliant with state laws—unlike California’s medical cannabis businesses that are not regulated by the state—are not a Department of Justice (DOJ) target. Holder affirmed the basic tenets of the previous Ogden and Cole memos, and wouldn’t provide assurances, but, re-iterated the DOJ stance that enforcing medical cannabis laws, notably in a state like Colorado with its rules and regulations, and with limited federal resources at hand, is a low law DOJ enforcement priority.

The second Polis question was about banking and medical cannabis businesses in Colorado, where he pushed Holder to acknowledge that the DOJ is not placing a priority on interfering with state compliant medical cannabis businesses and banking concerns.

I assume there will be news and industry coverage later today and tomorrow about this unexpected, but informative exchange between Representative Polis and Attorney General Holder.

NORML Attorneys file multiple constitutional challenges to federal medical marijuana crackdown

NORML Attorneys Matt Kumin, David Michael, and Alan Silber, have filed suit (read here) in the four federal districts in California to challenge the Obama Administration’s recent crackdown on medical marijuana operations in the Golden State. Aided by expert testimony from NORML Deputy Director Paul Armentano and research from California NORML Director Dale Gieringer, the suits seek an injunction against the recent federal intrusion into state medical marijuana laws at least and at most a declaration of the unconstitutionality of the Controlled Substances Act with respect to state regulation of medical marijuana.

Video streaming by Ustream
The NORML attorneys allege the federal government has engaged in entrapment of California patients and their caregivers.  They point to the courts’ dismissal of County of Santa Cruz, WAMM et al. v. Eric Holder et al. where the Department of Justice (DOJ) “promised a federal judge that it had changed its policy toward the enforcement of its federal drug laws relative to California medical cannabis patients.”  So after 2009, California providers had reason to believe that the federal government had changed its policy.  The legal argument is called ‘judicial estoppel’, which basically means that courts can’t hold true to a fact in one case and then disregard it in another.

Kumin, Michael, and Silber also argue the government has engaged in ‘equitable estoppel’, which most people commonly think of as ‘entrapment’.  That is to say, you can’t bust a person for committing a crime when the authorities told him it wasn’t a crime to do it!

Under established principles of estoppel and particularly in the context of the defense of estoppel by entrapment, defendants to a criminal action are protected and should not be prosecuted if they have reasonably relied on statements from the government indicating that their conduct is not unlawful. That principle should be applied to potential defendants as well, the plaintiffs in this action.  Such parties, courts have noted, are “person[s] sincerely desirous of obeying the law”. They “accepted the information as true and [were]…not on notice to make further inquiries.” U.S. v. Weitzenhoff, 1 F. 3d 1523, 1534 (9th Cir. 1993).

The US Constitution figures prominently in the legal challenge as well.  The 9th Amendment says that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  The NORML attorneys argue that threatening seizure of property and criminal sanctions violates the rights of the people to “consult with their doctors about their bodies and health.”

The 10th Amendment provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  The NORML attorneys argue that the States have the “primary plenary power to protect the health of its citizens” and since the government has recognized and not attempted to stop Colorado’s state-run medical marijuana dispensary program, it cannot suggest Colorado has a state’s right that California does not.

The 14th Amendment says that all citizens have equal protection under the law.  The NORML attorneys argue that the federal government:

1. Actively provides cannabis for medical purposes to individuals through its own IND program.
2. Actively allows patients in Colorado to access medical cannabis through a state-licensing system that allows individuals to make profit from the sales of medical cannabis.
3. Actively restricts scientific research into the medical value and use of cannabis to alleviate human suffering and pain.

Thus, according to Kumin, Michael, and Silber, the government can’t be allowing Colorado medical marijuana commerce, engaging it its own IND program that mails 300 joints a month to four federal medical marijuana patients yet squelching all attempts to study medical value of marijuana, then have a rational basis for shutting down medical marijuana dispensaries in California.  Under the 14th Amendment, the feds can’t treat Californians differently than Coloradoans and differently than four US citizens who get legal federal medical marijuana.

Finally, while acknowledging that Raich v. Gonzales 545 US 1 (2005) set the precedent that the Constitution’s Interstate Commerce Clause does allow the feds to prosecute California’s medical marijuana, the NORML attorneys argue:

…it is still difficult to imagine that marijuana grown only in California, pursuant to California State law, and distributed only within California, only to California residents holding state-issued cards, and only for medical purposes, can be subject to federal regulation pursuant to the Commerce Clause. For that reason, Plaintiffs preserve the issue for further Supreme Court review, if necessary and deemed appropriate.

We will keep you posted on all updates related to this groundbreaking lawsuit.  Archive of our interview with the lead attorneys in this case is available in our “Audio/Video” section on The NORML Network.

Click here to join NORML today and help us in the fight to legalize marijuana.

Bush Holdover Unanimously Confirmed To Head U.S. Drug Enforcement Administration

[Editor's note: This post is excerpted from this week's forthcoming NORML weekly media advisory. To have NORML's media advisories delivered straight to your in-box, sign up for NORML's free e-zine here.]

The U.S. Senate has confirmed Michelle Leonhart by unanimous consent to head the United States Drug Enforcement Administration (DEA). Miss Leonhart had served as interim director of the agency since November 2007. President Barack Obama had nominated Leonhart in February to serve as the agency’s director.

Numerous drug policy reform organizations, including NORML, had opposed Leonhart’s confirmation – arguing that her actions as interim DEA administrator were contrary to the Obama administration’s pledge to allow science, rather than rhetoric and ideology, guide public policy.

For example, Ms. Leonhart oversaw dozens of federal raids on medical marijuana providers and producers. These actions took place in states that have enacted laws allowing for the use and distribution of marijuana for medical purposes, and are inconsistent with an October 19, 2009 Department of Justice memo recommending federal officials no longer “focus … resources … on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”

Miss Leonhart also blocked scientific research that sought to better identify and quantify marijuana’s medicinal properties and efficacy. In particular, Ms. Leonhart neglected to reply to an eight-year-old petition calling for administrative hearings regarding the rescheduling marijuana for medical use. Such hearings were called for in 2009 by the American Medical Association, which resolved “that marijuana’s status as a federal Schedule I controlled substance be reviewed with the goal of facilitating the conduct of clinical research and development of cannabinoid-based medicines.” Moreover, in January 2009, Ms. Leonhart refused to issue a license to the University of Massachusetts for the purpose of cultivating marijuana for FDA-approved research, despite a DEA administrative law judge’s ruling that it would be “in the public interest” to grant this request.

Finally, Ms. Leonhart has exhibited questionable judgment when speaking about the subject of escalating drug war violence in Mexico. In 2009, she described this border violence — which is responsible for over 31,000 deaths since December 2006 — as a sign of the “success” of her agency’s anti-drug strategies.

Commenting on Ms. Leonhart’s confirmation, NORML Deputy Director Paul Armentano said, “Ms. Leonhart’s actions and ambitions are incompatible with state law, public opinion, and with the policies of this administration. It is unlikely that we will see any serious change in direction of the DEA under Ms. Leonhart’s leadership.”

In December, Wisconsin Democrat Herb Kohl had placed a hold on Ms. Leonhart’s nomination. Senator Kohl dropped his hold on December 22, and the Senate unanimously confirmed Leonhart’s nomination the following day.

Obama Administration Opposes Oakland’s Medical Marijuana Grow Plan, Threatens Potential Statewide Crackdown

Obama administration officials strongly oppose plans by the city of Oakland to license and tax industrial sized medical cannabis producers, according to a just published report on CaliforniaWatch.org, the website of the Center for Investigative Reporting.

Sources at the U.S. Department of Justice (DOJ) and the United States attorney’s office in San Francisco said that federal officials would likely pursue criminal or civil litigation against local marijuana growers as well as Oakland city officials if they decide to move forward with plans to license medical cannabis farming. “Oakland would be on the hook for violating state and federal law,” an unnamed administration official told the website.

Oakland City Attorney John Russo confirmed that DOJ officials are opposed to the city’s licensing plan. “They’ve expressed their concerns that the path Oakland is taking is in violation of the law,” Russo said in a prepared statement.

Oakland officials are seeking to license up to four industrial-sized medical marijuana grow operations within the city limits. The permits do not set limits regarding the quantity of cannabis that licensed producers may cultivate at each given site. City officials began accepting applications from prospective growers in November.

According to the California Watch report, federal officials are also planning to initiate a broader crack down on marijuana production and distribution statewide. The story reports that DOJ and Drug Enforcement Administration (DEA) officials met with California’s four U.S. attorneys on November 10 “to develop a plan to deal with some of the loopholes and gray areas in the state’s medical marijuana program.”

The administration’s threats appear to be in conflict with an October 19, 2009 DOJ memo stating, “As a general matter, pursuit of [federal law enforcement] priorities should not focus federal resources … on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” Nevertheless, as previously reported by Americans for Safe Access and others, the administration since issuing that memo has engaged in an estimated 30 federal raids of medical marijuana providers, producers, and laboratory facilities that engage in the testing of cannabis potency and quality.

NORML will have further details on this story in Thursday’s weekly media advisory.