Federal Court Bars DOJ from Prosecuting Participants in State Medical Marijuana Programs


On Tuesday, August 16, 2016, a federal appeals court in California barred the Justice Department from prosecuting medical marijuana cases where no state laws were violated. Specifically, in the matter styled United States v. McIntosh, a three judge panel of the 9th U.S. Circuit Court of Appeals sitting in San Francisco ordered the Justice Department (“DOJ”) to show that individuals under indictment for violating the Controlled Substances Act violated medical marijuana laws of their respective states before continuing with prosecutions. The opinion addressed ten consolidated matters arising from three district courts in California and Washington State.

At the heart of the matter is a congressional appropriations rider to the Consolidated Appropriations Act (known as the “Rohrabacher-Farr Amendment”) that prohibits the Department of Justice from spending funds to prevent states from implementing their medical marijuana laws. The Rohrabacher-Farr Amendment is intended to prevent the DOJ, and the DEA, from using funds to arrest or prosecute patients, caregivers, and businesses that are acting in compliance with state medical marijuana laws. It was first approved in the House of Representatives in May 2014 and included in the Consolidated and Further Continuing Appropriations Act of 2015. As an appropriations bill, it requires renewal and is not permanent. Currently, 25 states and the District of Columbia have medical marijuana laws with multiple other states set to address the issue in the upcoming November elections.

In United States v. McIntosh, the lead case, defendants allegedly ran marijuana stores in the Los Angeles area and indoor marijuana grow sites in the San Francisco and Los Angeles areas. These defendants were indicted for conspiracy to manufacture, to possess with intent to distribute, and to distribute more than 1000 marijuana plants in violation of the Controlled Substances Act. Rejecting the DOJ’s arguments, the 9th Circuit Court of Appeals held that § 542 of the Consolidated Appropriations Act prohibits the Department of Justice from spending funds from relevant appropriations acts for the prosecution of individuals who engage in conduct permitted by state medical marijuana laws and who fully complied with such laws. The DOJ may continue to prosecute those individuals who do not strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana. However, Judge Diarmuid F. O'Scannlain, writing for the panel, stated "[I]f DOJ wishes to continue these prosecutions, [defendants] are entitled to evidentiary hearings to determine whether their conduct was completely authorized by state law, by which we mean that they strictly complied with all relevant conditions imposed by state law on the use, distribution, possession, and cultivation of medical marijuana." Federal prosecutors had argued that in authorizing the Consolidated Appropriations Act, Congress only meant to bar the department from taking legal action against states, not individuals, who were still subject to prosecution. The court clearly rejected this argument, saying that medical marijuana-based prosecutions prevent the states from giving full effect to their own measures.

This opinion should come as a boost to the morale of those shaken by last week’s decision from the DEA refusing to reschedule marijuana under the CSA. Further, and in the form of under the CARERS Act, Congress is now at work on a bi-partisan effort to remedy the state-federal conflict over medical marijuana laws. Specifically, the bill would allow state programs to continue without federal inference, move marijuana out of Schedule I, remove CBD from the scheduling, create access to banking services for legal marijuana businesses, end the Public Health service review process and the National Institute on Drug Abuse (“NIDA”) monopoly that blocks research, and allow VA doctors to write recommendations in states that have a medical marijuana program.

To read the complete opinion from the 9th Circuit Court of Appeals in United States v. McIntosh, please use this link. https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/16/15-10117.pdf

Questions and comments welcome at:
Ted Flowers (tflowers@smsm.com & @tcf1965) 

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