With a recent policy change from Jeff Sessions, localities may again be more vulnerable to federal crackdowns. But some of the pioneers of pot legalization have been through this before.
The state of marijuana’s legality in the U.S. is, to put it mildly, a hot mess. It’s a thick tangle of conflicting rules, with states, cities, and the federal government each creating and trying to carry out their own laws.
Some states have legalized marijuana explicitly for medical use, others for both medical and recreational purposes. Because so many jurisdictions can claim to have the ultimate say in the way pot is legislated in a given area, it can be difficult to understand where the lines around it are drawn.
For the last few years, states have had a measure of protection under an Obama directive to federal prosecutors that essentially told them to back off in states that had legalized marijuana for recreational and/or medical purposes. But last Thursday, Attorney General Jeff Sessions made marijuana’s status even more opaque, declaring that the Justice Department would rescind that directive, but offering little guidance beyond that. He said in a memo announcing the change that federal laws “reflect Congress’s determination that marijuana is a dangerous drug and that marijuana activity is a serious crime.”
Now, officials and those in the marijuana business are potentially facing new risk of legal action. But some cities and dispensary owners are prepared to protect their legalization plans from going up in smoke.
It isn’t the first time that pioneers of the marijuana movement have faced this threat. In the earlier years of the Obama administration, many major dispensaries confronted aggressive legal action from the federal government, including jail sentences as long as ten years in Colorado. These crackdowns abated as U.S. Attorney General Eric Holder softened federal policy on marijuana enforcement. But prior to that abatement, some dispensaries survived federal attacks in part with the backing of cities who fought back. And the early indication is that those cities are ready to fight again.
Steve DeAngelo, founder of the marijuana dispensary Harborside Health Center, confronted then-U.S. attorney Melinda Haag in a civil forfeiture action to shut down the center in 2012. California had already legalized medical marijuana at the time. But the federal government nonetheless moved to seize DeAngelo’s Oakland dispensary, widely considered the nation’s largest, claiming it had violated federal drug laws.
After long and expensive battles—and the intervention of cities—the cases against Harborside and several other California dispensaries were eventually dismissed.
In DeAngelo’s case, the city of Oakland sued the federal government (a case that was dismissed), claiming that the center’s closure would result in a public safety and health crisis.
In a statement released soon after the city’s filing, Oakland City Attorney Barbara Parker said that the lawsuit, “is about protecting the rights of legitimate medical patients. I am deeply dismayed that the federal government would seek to deny these rights and deprive thousands of seriously ill Californians of access to safe, affordable and effective medicine.”
In Berkeley, when Haag targeted the medical marijuana dispensary Berkeley Patients Group, the city joined the civil case as an interested party.
In both instances, the federal government eventually dismissed the cases and allowed the dispensaries to stay open. The Justice Department declined to comment on the reasoning behind the dismissals. But DeAngelo said he is convinced that the federal government backed off, “in large part because of the support we got from our municipal governments.”
Pete Holmes, the city attorney for Seattle, said he also faced risks of federal litigation when Washington first legalized in 2012. At the time, the Obama administration hadn’t yet issued the policy known as the Cole Memo discouraging some marijuana prosecutions. The risk of federal prosecution was similar to what it is now, with one prominent difference: Holmes says he knew the Obama administration didn’t want to have that fight.
“When we designed I-502, our initiative that legalized adult use [of marijuana], we had this same debate, people saying ‘How can you do this in light of federal regulation?’” Holmes said. When the Cole Memo came out a year after I-502 was voted in, Seattle could rest somewhat easy. Now, that safeguard is gone, and Holmes can’t be sure what the way forward should look like.
“Simply saying you’re going to rescind the memo and not anything more puts us in a guessing game, which is the M.O. for this chaotic administration anyway,” he said. “The reasonable response is ‘let’s find out what they plan to do.’ And, so far, we don’t have any more information other than you can no longer rely on the Cole Memo. This is going to exacerbate our ability to provide for public safety within our own cities and states.” Though Holmes said he has been having conversations with the U.S. Attorney overseeing Seattle and Washington state’s western district, “there’s a different U.S. Attorney in the eastern district: two different attorneys that could take different approaches to the federal controlled substances act.”
Holmes and his colleagues, however, are ready for a fight if necessary. He said Trump’s decision to repeal the Cole Memo flouts the 10th Amendment, which gives states any powers not expressly granted to the federal government by the U.S. constitution. That includes public health, which has historically fallen to the local rather than federal government, he argues. “Cities and states have rights under the 10th Amendment,” Holmes said, channelling a states’ right argument often made by conservatives. “By saying you’re going into a state, the federal government is going where the sovereign authority has been exercised to legalize adult-use marijuana, and they’re going to trump—no pun intended—that state’s exercise of authority.”
In a statement, Seattle mayor Jenny Durkan also pushed back against Sessions’ announcement. "Let’s be clear," said Durkan. "Our Seattle Police Department will not participate in any enforcement action related to legal businesses or small personal possession of marijuana by adults. Federal law enforcement will find no partner with Seattle to enforce the rollback of these provisions."
For the most part, prosecutors have been reluctant to take a definitive stance on the issue. In Massachusetts, where pot became legal last year, U.S. Attorney Andrew Lelling said in a statement that he could not “provide assurances that certain categories of participants in the state-level marijuana trade will be immune from federal prosecution.”
Meanwhile, Bob Troyer, the U.S. Attorney for Colorado, issued a statement that indicated that he would continue to honor Colorado’s existing stance on prosecuting marijuana (a stance that has thus far allowed dispensaries in the state to exist without much incidence).
Even if prosecutors like Lelling wanted to aggressively target pot, the refusal of local officials to aid federal prosecutions would make such prosecutions significantly more difficult. The federal Drug Enforcement Administration has a limited number of agents, and they frequently rely on city and state officials to aid those efforts.
Which is why, similar to the way some states have been handling immigration and the sanctuary movement, DeAngelo suggests that cities and states pass laws forbidding local law enforcement from cooperating with federal agencies to target licensed, legal cannabis business. “If cities and states refuse to make their agencies available, it’s basically impossible for the feds to [prosecute],” he said. Unless, of course, they get extra funding from Congress.
Congressional funding for prosecuting marijuana is another important piece of the pot puzzle. The Rohrabacher-Farr Act, passed in 2014, essentially blocked the Justice Department from using money to prosecute medical marijuana in states where it has been declared legal. The act comes up for renewal every year, and Sessions has been pushing Congress to oppose it, a move that would certainly give his revocation of the Cole Memo more teeth. DeAngelo wants citizens to encourage their members of Congress to not only renew the act, but pass a similar law protecting recreational marijuana.
The Cole Memo was never an ironclad safeguard; U.S. attorneys always had the ability to target dispensaries, and people are still being arrested for marijuana-related charges in states where usage is legal. But the memo was a measure of protection, a nod and a wink to the states that they would, for the most part, be left in peace.
Yet DeAngelo’s view of the situation is far from dire. “The short answer, in my point of view, is that it’s no big deal,” he said. “What [rescinding the Cole Memo] does is it just affirms an already existing right that U.S. attorneys have to target any violators of federal cannabis law. But I think that any U.S. attorney living in a legalized state knows what anyone in that state knows: legalization has enhanced public safety, freeing up law enforcement to focus on real crimes. Given the choice between spending law enforcement dollars going after opioids or cannabis, it’s hard to imagine any reasonable U.S. attorney going after cannabis.”
But while the opioid epidemic is a clear and present danger—STAT News predicted that 500,000 Americans could die from opioids in the next decade—Sessions has made it clear in the past that marijuana is his great white whale. And he made it clear that he hasn’t forgotten with his announcement last week.