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Though medical marijuana is now legal in 25 states and Washington, DC,
the drug still remains strictly banned under federal law, a contradiction
that has long made even the most compliant patients, growers, and dispensary
owners nervous about getting busted by the feds. But at least some of
them can relax — for now.
That's because a federal court in San Francisco ruled this week that
the Department of Justice can't spend money to prosecute people who
obey their state's medical marijuana laws.
The decision, handed down on Tuesday by the Ninth Circuit Court of Appeals,
solidifies the legal standing of a rule that was attached to a 1,603-page
federal spending bill passed by Congress in 2014 and later extended through
September 2016. As noted by the court, the budget caveat — commonly
known as a rider — expressly forbids federal authorities from spending
taxpayer money on prosecuting medical marijuana cases against individuals
who have "fully complied" with state laws.
Related: Cops can't pull you over just because your state has legal
weed, court rules
The case, USA v. McIntosh, grouped together appeals by 10 people from California
and Washington who were prosecuted for violating the Controlled Substances
Act, the federal statute that outlaws weed. The case's eponymous defendant,
Steve McIntosh, faced conspiracy charges related to more than 1,000 pot
plants linked to five Los Angeles–area marijuana stores and nine
grow operations. The other cases involved similarly massive hauls, including
one in Fresno, California, where investigators found more than 30,000 plants.
"If DOJ [the Department of Justice] wishes to continue these prosecutions,
the appellants are entitled to evidentiary hearings to determine whether
their conduct was completely authorized by state law," Judge Diarmuid
O'Scannlain wrote, sending the cases back to lower federal courts
for further review.
Charles Sanford Smith, a New York attorney who handles medical marijuana
cases, said the ruling could effectively halt federal prosecutions while
the DOJ figures out whether it's even allowed to spend money trying
to prove that pot defendants have run afoul of state laws.
'You'd think they wouldn't want to spend the time or the resources
on these prosecutions.'
"In some ways they've already spent money to go forward on that
small process, and you can make the argument they would be spending money
in violation of the appropriations rider just by prosecuting up to that
point, just by filing the charges," Smith said. "It makes it
more difficult for [the DOJ], and practically you'd think they wouldn't
want to spend the time or the resources on these prosecutions."
Asked about that argument and the impact of the Ninth Circuit's decision,
DOJ spokesperson Peter Carr replied, "We are reviewing the ruling
and are declining to comment further at this time."
While the ruling offers some reassurance to law-abiding medical marijuana
users in the nine Western states covered by the Ninth Circuit, Smith noted
that judges elsewhere might not have the same interpretation of the law
and could still allow federal prosecutions. (In addition to the 25 states
that allow medical patients to smoke cannabis, 40 states have laws allowing
the use of cannabinol and other products derived from weed.)
And, as O'Scannlain pointed out on Tuesday, the budget rider is a stopgap
protection that could soon be eliminated.
"Congress could restore funding tomorrow, a year from now, or four
years from now," the judge wrote, "and the government could
then prosecute individuals who committed offenses while the government