Twenty-five states, the District of Columbia, and two U.S. territories (Guam and Puerto Rico) have all adopted medical marijuana laws.  Polls in individual states show support for medical marijuana laws reaching as high as 90 percent; and, according to a recent Quinnipiac University poll, a majority of Americans (54%) for the first time now support the complete legalization of marijuana.


But the federal Controlled Substances Act (“CSA”) makes the possession, distribution, sale, and cultivation of marijuana a felony offense.


Congress Prohibits Funds for Prosecuting Medical Marijuana


In 2015, the U.S. Congress sought to reconcile the legal dispute between medical marijuana states and the federal government with the enactment of the Consolidated Appropriations Act (“Act”) which prohibits the Department of Justice (“DOJ”) from spending funds to prevent states from implementing their medical marijuana laws.


That same year, the DOJ secured indictments in ten medical marijuana cases for an assortment of violations of the CSA. Attorneys in the cases sought dismissal of the indictments and to enjoin the DOJ from further prosecution on the basis of the Act in three U.S district courts in two states (Washington and California). The district courts denied the motions.


Defendants in all the cases sought interlocutory appeals in the Ninth Circuit Court of Appeals.


Ninth Circuit Agrees CAA Prohibits Spending on Medical Marijuana Prosecutions


On August 16, 2016, the appeals court issued an opinion that held the Act prohibits the DOJ from spending funds from “relevant appropriations acts” for the prosecution of individuals “engaged in conduct permitted by state medical marijuana laws and who fully complied with such laws.”


The three-judge panel, however, held that “individuals who do not strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana have engaged in conduct that is unauthorized, and that prosecuting such individuals does not violate [the Act].”


In one of the cases before the Ninth Circuit, five defendants who operated a medical marijuana store in Los Angeles had “grow sites in the San Francisco and Los Angeles areas” and were indicted for intent to distribute more than 1000 marijuana plants; and four defendants in Sanger, California were indicted after 30,000 marijuana plants were found on their property by the DEA; and five defendants in Washington State were indicted for conspiring to distribute 1000 or more marijuana plants.


What is a Legitimate Medical Marijuana Grow Operation?


The DOJ in each of these cases did not believe that the defendants were engaged in legitimate medical marijuana operations.


Attorneys for the defendants, however, argued that the conduct of the defendants was lawful under the two state’s duly enacted medical marijuana laws. The attorneys invoked U.S. Supreme Court precedent that “money may be paid out only through an appropriations made by law; in other words, the payment of money from the Treasury must be authorized by a statute.”


The Act removes such appropriations, the attorneys argued.


CAA Applies to Prosecutions Against Individuals


The DOJ tried to split legal hairs with the appeals court, arguing that the Act does not prevent the “Medical Marijuana States from giving practical effect to their medical marijuana laws by prosecuting private individuals rather than taking legal action against the state.”


The Ninth Circuit responded, “we are not persuaded.”


The appeals court went to the heart of this legal dilemma.


Controlled Substance Act Prohibits What State Med. Marijuana Law Permit


“Here, we must read [the Act] with a view to its place in the overall statutory scheme for marijuana regulation, namely the CSA and the State Medical Marijuana Laws. The CSA prohibits the use, distribution, possession, or cultivation of any marijuana … The State Medical Marijuana Laws are those state laws that authorize the use, distribution, possession, or cultivation of medical marijuana. Thus, the CSA prohibits what the State Medical Marijuana Laws permit.


“In light of the ordinary meaning of the terms of [the Act] and the relationship between the relevant federal and state laws, we consider whether a superior authority, which prohibits certain conduct, can prevent a subordinate authority from implementing a rule that officially permits such conduct by punishing individuals who are engaged in the conduct officially permitted by the lower authority. We conclude that it can.”


Having established that the CSA preempts the State Medical Marijuana Laws, the next question to be answered was when, and under what circumstances, would the DOJ be allowed to bring CSA prosecutions against medical marijuana distributors. The Ninth Circuit addressed this question in its remand order:


“We therefore must remand to the district courts. If the 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. We leave to the district courts to determine, in the first instance and in each case, the precise remedy that would be appropriate.


“We note the temporal nature of the problem with these prosecutions. The government had authority to initiate criminal proceedings, and it merely lost funds to continue them. The DOJ is currently prohibited from spending funds from specific appropriations acts for the prosecution of those who complied with state law. But Congress could appropriate funds for such prosecutions tomorrow. Conversely, this temporary lack of funds could become a more permanent lack of funds if Congress continues to include the same rider (the Act) in future appropriations bill. In determining the appropriate remedy for any violation of [the Act], the district court should consider the temporal nature of the lack of funds along with the [defendants’] rights to a speedy trial under the Sixth Amendment and the Speedy Trial Act …”


DOJ can Charge, but Cannot Prosecute


Put simply, the DOJ under the CSA can bring charges against both lawful medical marijuana distributors and those who do not comply with the conditions of State Medical Marijuana Laws. However, the DOJ cannot prosecute lawful medical marijuana distributors because the Act does not authorize funds to do so. Prosecution of those who do not comply with all the conditions of State Medical Marijuana Laws can proceed because they are unlawful drug offenders under the CSA.


The complete legalization of marijuana at both the state and federal level seems to be the only way of this clogged constitutional rabbit hole.