9th Circuit to Feds: Chill out, man. You’re being very undude-like.
You can mark Tuesday August 16, 2016 on your calendar. That date, some believe, was be the beginning of the end of “federal prosecutions of state medical marijuana dispensary operators, growing and patients.”[1] The Department of Justice is not happy with these results, but it is unclear whether they will appeal. Judge D.F. O’Scannlain wrote for the 9th Circuit “If [the Department of Justice] wishes to continue these prosecutions, Appellants 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.”[2] Does this mean that the 9th Circuit has found some power in the 10th amendment, whereby states have the right to actually set laws and govern their own in conflict with federal laws? Don't get your hopes up. In this case, the 9th Circuit was simply attempting to enforce their reading of Congress’s Consolidated Appropriations Act of 2016, signed into law on Dec. 18, 2015. In other words, Congress simply tightened the purse strings on the DOJ’s ability to prosecute medical marijuana cases, and the 9th Circuit is enforcing that apparent intent.
In the aforementioned act, Congress prohibited the "DOJ from using 2016 funds to block those U.S. jurisdictions that have legalized medical marijuana from ‘implementing their own laws that authorize the use, distribution, possession or cultivation of medical marijuana” and that Congress also intended to ‘’preclude federal funds from being used to ‘ prohibit the transportation, processing, sale or use of industrial hemp that is grown or cultivated in according [existing law].”[3] When the DOJ went forward with prosecutions anyway, the 9th Circuit Court of Appeals put the DOJ on time out. That is a very uncool place to be.
Make no mistake, the public opinion on marijuana is changing. But, tidal changes take time to trickle up through the government.
In the short-term this ruling shows that the law is becoming more favorable for medical or industrial users of marijuana products[4]. That is a good thing for those suffering.
In the mid-term, don’t expect marijuana to come off of Schedule 1 of the Controlled Substances Act. The government explicitly states that pot has a high potential for abuse; no currently accepted medical use; and a lack of acceptable safety for use of the drug under medical supervision.[5] You read that right: the government agencies tasked with controlling drugs believe that pot is similar to Heroin, LSD or Mescaline.
In the long-term it appears that support for the staunch prohibition against recreational use of marijuana is eroding. As Hunter S. Thompson once said "I have always loved marijuana. It has been a source of joy and comfort to me for many years. And I still think of it as a basic staple of life, along with beer and ice and grapefruits - and millions of Americans agree with me." I suspect the DOJ and DEA won’t let it go without a fight. There is simply too much money and power available for the enforcement of prohibition. But, that's another discussion for another day.
--By Derek A. Jordan, Esq., Barnes Law
Derek A. Jordan is an associate attorney with Barnes Law, licensed to practice law in Tennessee.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] See: http://abcnews.go.com/US/wireStory/court-bars-feds-prosecuting-medical-pot-cases-41431227
[2] See: http://bigstory.ap.org/article/5e1ae8ead0f349fab120044c1f309dab/court-bars-feds-prosecuting-medical-pot-cases
[3] See: http://www.law360.com/articles/745597/congress-conflicting-approach-toward-medical-marijuana
[4] See: http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881