In 2009, the Justice Department formally announced that it would not direct its limited resources towards medical marijuana dispensaries acting in full compliance with state law. According to a memo from then-Deputy Attorney General David Ogden, federal prosecutors “should not focus federal resources . . . on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” Recently, however, U.S. Attorneys in states such as California and Colorado, where medical marijuana use is legal, have began threatening to seize the buildings that house medical marijuana dispensaries unless the dispensaries’ landlords evict their cannabis-providing tenants.
Recently, DOJ set its sights on California’s Harborside Health Center, the largest medical marijuana dispensary in the world, suing to shut down Harborside’s two branches in Oakland and San Jose. Yet it is not at all clear how these suits can be squared with the Department’s 2009 memorandum. Harborside worked closely with Oakland officials to craft a strict regulatory regime to monitor their industry, and city officials agree that Harborside is in full compliance with state and local laws.
On Thursday, Rep. Barbara Lee (D-CA) introduced the States’ Medical Marijuana Property Rights Protection Act, which would stop the DOJ from going after dispensaries’ landlords through asset forfeiture laws. According to Americans for Safe Access, the mere threat of these kinds of lawsuits have been enough to shutter roughly 400 medical marijuana dispensaries in California.
Lee’s bill comes on the heels of the bipartisan Truth In Trials Act, sponsored by Rep. Sam Farr (D-CA), Rep. Barney Frank (D-MA), Rep. Ron Paul (R-TX) and Rep. Dana Rohrabacher (R-CA), among others. More extensive than Lee’s measure, the bill would allow state-licensed medical marijuana users to defend against federal prosecutions or lawsuits, by showing that they were in fact in compliance with state law. It also would prevent the government from seizing cannabis plants that are legal under state law.
As recently as June 7 of this year, Holder reiterated in a House Judiciary Committee that DOJ would only take action against dispensaries operating “out of conformity with state law.” Yet there does not appear to be any evidence that Harborside, which tests all its products in a lab for safety and pays $3 million in federal, state and local taxes, is in violation of California law. U.S. Attorney Melinda Haag, who is responsible for the actions against Harborside, could only point to the fact that Harborside is a large operation, and “[t]he larger the operation, the greater the likelihood that there will be abuse of the state’s medical marijuana laws.”
While they gear up for a legal battle, Harborside is also calling for an immediate freeze on the patchwork enforcement actions against dispensaries operating under different state laws until a top-level federal review can determine whether U.S. Attorneys are acting appropriately in targeting these dispensaries. The need for one coherent federal policy will only grow, as 17 states and the District of Columbia currently have medical marijuana laws on the books, and more medical marijuana ballot initiatives are likely to pass this year. An unprecedented majority of Americans favor marijuana legalization, while 3 in 4 believe the federal government should leave marijuana users alone as long as they comply with state law.
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