New DOJ Attack on State Medical Marijuana Laws Could Land Feds Back in Court

Guest blogger Allen Hopper ponders the impact of letters sent recently by U.S. Attorneys to officials in medical marijuana states: will they affect an ACLU lawsuit alleging 10th amendment violations in the federal government’s prosecution of a Santa Cruz medical marijuana collective? or the enforcement of medical marijuana laws more generally? Hopper is the Police Practices Director for the ACLU of Northern California and previously coordinated drug policy-related litigation as the Litigation Director for the National ACLU’s Drug Law Reform Project.  A nationally recognized expert on marijuana law reform, he has been quoted extensively in the media, worked cases in state and federal courts, and testified before legislative committees on issues related to the intersection of federal and state drug laws. 

Allen Hopper

U.S. Attorneys in at least seven states recently sent letters to state government officials threatening to vigorously prosecute medical marijuana distribution–regardless of individual state law protections. Patient advocates have rightly cried foul, pointing to the so-called “Ogden Memo”—an October 2009 DOJ letter instructing federal prosecutors to refocus enforcement efforts away from providers operating in accordance with state medical marijuana laws. Despite the ominous sabre rattling, however, there have been no recent raids on state-registered dispensaries in any of the states that tightly regulate medical marijuana distribution.

So, what are these threatening new letters really about? In a letter to Attorney General Holder last week, the ACLU suggested that the federal government is improperly attempting to influence the states’ legislative processes. The ACLU points out that several of these letters landed on state officials’ desks just as new state laws regulating medical marijuana were about to be enacted. The Governor of Washington, for instance, vetoed a popular medical marijuana bill after receiving a letter from U.S. Attorneys threatening to prosecute state officials who license and regulate dispensaries. If the ACLU is right about the real purpose behind these U.S. Attorney letters, the feds may be opening a can of worms they’ll wish they hadn’t. A federal lawsuit put on hold in 2009 after the DOJ issued the Ogden Memo could be reopened, with court-ordered discovery into federal enforcement practices.

Way back during the G.W. Bush era, the City and the County of Santa Cruz, California, filed a lawsuit against the federal government in response to a 2002 DEA raid of a City-and-County-sanctioned medical marijuana garden. The case dragged on, as federal lawsuits do, but by October 2009, the federal district court had denied the federal government’s motion to dismiss the case, and lawyers for the plaintiffs were preparing to depose Bush and Obama administration officials about federal enforcement policies.  At issue

Best Practices for the State = Bust Practices for the Feds

was whether the government had selectively enforced federal marijuana laws in California, purposefully targeting those organizations operating in full compliance with state laws and most closely collaborating with local governments; the lawsuit asserted that such raids were an attempt to undermine state medical marijuana laws and force the state to re-criminalize medical marijuana.

But then the Justice Department issued the Ogden Memo, which DOJ attorneys asserted in court amounted to a significant shift in policy: those who complied with state medical marijuana laws would no longer be targeted. Santa Cruz voluntarily dismissed the case, but it did so with an unusual and important stipulation: the judge and the parties agreed that if the feds did not stick to the new policy, the case could be reinstated right where things left off.

In short, if the federal government isn’t careful, it may find itself back in front of a federal judge in Northern California having to answer uncomfortable questions about why the DOJ seems once again to be violating basic tenets of federalism by trying to bully state legislatures into marching in lockstep with federal marijuana prohibition.