DOJ Can’t Fund Medical Pot Prosecutions

The Justice Department can’t use federal money to prosecute people who use medical marijuana in states where that use is legal and suspects have complied with the law, a federal appeals court ruled Tuesday.

Ten separate federal marijuana prosecutions were halted by the 9th U.S. Circuit Court of Appeals based on a 2014 law in which Congress explicitly barred the DOJ from using federal funds to interfere with states that legalized medical marijuana.

The individuals were charged with various violations including growth and distribution of marijuana plants.

Judge Diarmuid O’Scannlain, one of the most conservative judges on the appeals court, wrote that the appropriations bill by Congress expressly prohibits the DOJ from spending money to keep 43 states and jurisdictions: among them, California, Washington, Arizona, Alaska, Hawaii, Guam, Oregon and Nevada, from implementing state medical marijuana laws. All the listed states are within the 9th Circuit’s jurisdiction.

One of the defendants, Steve McIntosh and four codefendants, were accused of running four medical marijuana dispensaries in the Los Angeles area and nine indoor marijuana grow sites in San Francisco and Los Angeles.

Another five defendants were charged in Washington state cases.

They all sought dismissal of charges based on a 2014 rider congress inserted into an appropriations bill that “none of the funds made available in this act to the Department of Justice may be used” in the various states with medical marijuana laws “to prevent such states from implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana.”

The panel interpreted this to extend to prosecution of individuals acting under the state laws.

O’Scannlain acknowledged the rider “is not a model of clarity.”

“DOJ argues that it 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. We are not persuaded,” O’Scannlain wrote.

If the federal government prosecutes individuals for conduct the state has authorized, “it has prevented the state from giving practical effect to its law providing for non-prosecution of individuals who engage in the permitted conduct,” he said.

If DOJ wants to continue these prosecutions, the defendants are entitled to evidentiary hearings to determine if their conduct complied with state law, he said.

The cases were sent back to the trial judges In San Francisco, Sacramento, Fresno and Spokane.

O’Scannlain was joined by Judges Barry Silverman and Carlos Bea.

Case: U.S. v. McIntosh, No. 15-10117

 

 

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