Department of Justice, Marijuana

DOJ Gets (Majorly) Smoked In Federal Court

What does this case mean for medical marijuana defendants?

By  
on

Last week, a new development occurred in the ongoing battle between state-legal medical marijuana facilities and enforcement of the Controlled Substances Act (CSA) by the U.S. Department of Justice. In a case now spanning more than 17 years, a federal judge in California ordered the DOJ to stop enforcing the CSA against Marin Alliance for Medical Marijuana (MAMM), a medical marijuana dispensary operating out of Fairfax, California.

In 1998, the DOJ filed suit against MAMM and five other medical marijuana dispensaries on the grounds that they were distributing marijuana in violation of the CSA. In 2002, a permanent injunction was entered against MAMM, ordering it to cease distributing cannabis. Then, nothing happened for nine years — MAMM continued its operations and the DOJ failed to take any further legal or enforcement action.

In 2011, the DOJ issued a cease-and-desist letter to MAMM and then initiated a new round of asset forfeiture proceedings. MAMM’s landlord eventually settled with the DOJ, and MAMM was ultimately forced to close its doors. Throughout the case, there was never a dispute that MAMM was operating in compliance with California’s Compassionate Use Act of 1996. In fact, the Fairfax mayor, in a letter to U.S. Attorney Melinda Haag and in court filings, described MAMM as a “model business” that has always abided by the conditions of its local use permit.

In June of this year, MAMM filed a motion arguing that the Rohrabacher-Farr amendment (also known as § 538 of the Consolidated and Further Continuing Appropriations Act of 2015) justified the court revisiting the permanent injunction entered against it. This amendment to the massive 2015 spending bill was intended to prevent CSA enforcement against medical marijuana patients and the dispensaries that serve them by cutting off federal funding for such DOJ enforcement activities. However, § 538 is open to interpretation and the DOJ has fought hard to continue its enforcement actions, without interruption.

The Honorable Judge Charles R. Breyer of the U.S. District Court for the Northern District of California has overseen the MAMM case from its infancy, and he ultimately agreed with MAMM about § 538. In his 13-page order, Breyer held that § 538:

prohibits the Department of Justice from expending any funds in connection with the enforcement of any law that interferes with California’s ability to implement [its] own State law that authorize[s] the use, distribution, possession, or cultivation of medical marijuana.

Though Breyer did not grant MAMM’s request to lift the injunction against it, he did rule that the injunction could only be enforced against MAMM insofar as MAMM violated California State law. Since MAMM’s compliance with California medical marijuana laws was never at issue, it is essentially back to business as usual for MAMM. Assuming, of course, that the DOJ does not seek reconsideration or an immediate appeal, which it almost certainly will. § 538 states as follows:

Sponsored

None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California … [all MMJ states], to prevent such states from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

The word “enforcement” is nowhere to be found in the foregoing language. And if this provision was enacted to prevent direct enforcement of the CSA, why didn’t it just come straight out and say so? The DOJ highlighted this glaring omission in opposing MAMM’s motion:

[Section 538 prohibits] the use of appropriated funds to “prevent” states from “implementing their own” medical marijuana laws. Such prohibited uses could include, for example, federal actions that interfered with a state’s promulgation of regulations implementing its statutory provisions, or with its establishment of a state licensing scheme. However, such uses do not include CSA enforcement actions against individuals or private businesses because such actions do not prevent a State from implementing its own laws . . . . [T]here is no evidence in the record that California has been impeded in any way in implementing its own State laws during the thirteen years the permanent injunction at issue has been in effect.

Judge Breyer found that the government’s reading of § 538 was “tortured.” In his view, the DOJ was arguing that the closure of just one dispensary does not interfere with implementing state MMJ laws, an argument Breyer deemed contradictory, since in the aggregate, enforcement actions would gut the Compassionate Use Act, Breyer engaged in a “plain language” reading of § 538 and viewed the dictionary definition of “implement” to require that he enforce § 538 “according to its terms.” Though his opinion spends more than two pages reciting the legislative history of the Rohrabacher-Farr amendment and noted that this history supports MAMM’s position, Judge Breyer claimed not to rely on this in formulating his decision.

Judge Breyer’s order will be cited by every medical marijuana defendant in the country facing some type of CSA enforcement. The lasting strength of his decision however remains to be seen. The United States v. MAMM decision is still just one judge’s opinion among 14 judges in one district, and one of 60 federal judges in California. There are more than 600 federal trial judges in our 50 states and territories, and decisions of trial judges are not binding precedent. The likelihood of judicial disagreement over the import and meaning of § 538 is nearly certain. However, if Breyer’s ruling is upheld on appeal by the Ninth Circuit, it may gain real traction. And as a cannabis business lawyer, that is my hope.

Sponsored

Hilary Bricken is an attorney at Harris Moure, PLLC in Seattle and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at hilary@harrismoure.com.

Topics

, , , , , , , ,