Court says feds can’t prosecute for medical pot use OKd by state

By Bob Egelko

In a potential legal breakthrough for medical marijuana, a federal appeals court ruled Tuesday that the Justice Department cannot prosecute anyone who grows, supplies or uses the drug for medical purposes under state law because Congress has barred federal intervention.

The decision by the Ninth U.S. Circuit Court of Appeals in San Francisco was written by one of its most conservative judges, Diarmuid O’Scannlain, and was the first by any appeals court to prohibit federal prosecutions under spending restrictions enacted by Congress. First passed in 2014 and renewed through September, the budget amendment forbids the Justice Department to spend any money to prevent California and other states from “implementing their own state laws” that authorize the medical use of marijuana.

The restrictions do not apply to state laws authorizing the personal use of marijuana, which California voters will consider in November. Although the drug remains illegal under federal law, the Obama administration says it has instructed federal prosecutors not to file charges against those who are following state laws.

But prosecutions and other federal actions against state-authorized marijuana suppliers have not ended. The government is still trying to shut down dispensaries, like the huge Harborside Medical Center in Oakland, and has refused to dismiss criminal cases it filed in the past, like those of the medical marijuana retailers and growers in Tuesday’s case.

In court, the administration argues that it still has the authority to prosecute individual users and suppliers, because it is not directly suing the state or preventing it from implementing its law. The appeals court disagreed.

The Justice Department “prevents (states) from implementing their laws that authorize the use, distribution, possession or cultivation of medical marijuana by prosecuting individuals” who do any of those things, O’Scannlain said in the 3-0 ruling. “If the federal government prosecutes such individuals, it has prevented the state from giving practical effect to its law.”

Lawyers representing the group of defendants in the case argued the budget restrictions prohibited all federal prosecutions in medical marijuana states, but O’Scannlain said Congress has shielded only those who are actually complying with state law, not those suspected of violating both state and federal laws. That means the Justice Department can still use federal law to file charges in marijuana cases, or continue prosecutions it has already started, but a federal judge will dismiss the charges if the judge determines the defendant was following state law.

The ruling is still a significant victory, said lead defense attorney Marc Zilversmit, who represented owners of marijuana dispensaries in Los Angeles and growers in the Los Angeles and San Francisco Bay areas.

“It says we’re right, that Congress has defunded DOJ’s war on medical marijuana,” Zilversmit said.
He said many issues remain to be decided, including whether a medical marijuana dispensary and all of its employees can be federally prosecuted if a single employee provided the drug in violation of state law.

The Justice Department declined to comment. The department could ask the full appeals court for a new hearing or appeal to the U.S. Supreme Court.

In a similar ruling in October, U.S. District Judge Charles Breyer of San Francisco said the congressional restrictions prohibit federal drug enforcers from shutting medical marijuana dispensaries that comply with state law. Tuesday’s decision affects criminal cases and, because it came from an appeals court, is binding on federal judges in California and the eight other Western states in the Ninth Circuit.

California, in a 1996 voter initiative, became the first state to legalize medical use of marijuana. About half the states now have similar laws, and the court said 40 states, along with Washington, D.C., Guam and Puerto Rico, have some version of a law allowing medicinal use of pot or a related herb. Four states and Washington, D.C., have legalized personal use of the drug, and it will be on the November ballot in California and four other states.

Despite increasing public support to relax federal prohibitions, however, the Obama administration refused last week to remove marijuana from the category of drugs that cannot be used or prescribed legally because they are considered dangerous and subject to abuse, with no recognized medical benefits.

The decision was a disappointment, but the court ruling “restores some sanity to the way the federal government respects medical marijuana patients,” said Rep. Sam Farr, D-Carmel, co-author of the congressional budget restrictions.

“California and many other states allow marijuana to be used for medical purposes, yet the federal government still considers it as dangerous as heroin,” Farr said in a statement. “While I’m pleased to see the amendment that I worked on with my colleagues being interpreted by the courts correctly, there needs to be a permanent change in federal policy to ensure medical marijuana patients aren’t criminalized in states that allow it.”