Appeals Court Ruling Just Made Medical Marijuana Prosecutions a Little Bit Harder

Department of Justice (DOJ) prosecutions concerning medical marijuana must come to a halt unless and until the federal government provides that the defendants are not acting inside of the state law, a federal appeals court has decided.


During his first term in office, Barrack Obama stepped up prosecutions for medical marijuana beyond prior levels in what was described as “Obama’s drug war.”

In response to the stepped-up prosecution, activists pushed to decriminalize medical marijuana. Attempts to pass stand-alone measures to allow legal medical marijuana failed.

In a massive appropriations bill, a rider was added to block the DOJ and the national government from spending money on prosecutions. The rider received overwhelming bipartisan support.

The law became known as Section 542 [§ 542].

SEC. 542. None of the funds made available in this Act to the Department of Justice may be used, with respect to any of the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, Wisconsin, and Wyoming, or with respect to the District of Columbia, Guam, or Puerto Rico, to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

Pro-legalization activist group Americans For Safe Access described the measure:

The amendment’s protection, while certainly real, is far from perfect. While the language of the amendment should prevent DOJ from taking any steps that interfere with a state medical cannabis program, the practical application of the amendment seems to only provide protection once a federal judge has determined that there is no clear violation of state law. In essence, the practical application of the amendment is roughly the equivalent of an affirmative defense…

The Barrack Obama administration quickly announced that it would continue prosecuting certain marijuana offenses in states where medical use was legal. Federal prosecutions have continued despite the appropriations rider.



In the case decided yesterday, ten marijuana producers who were being prosecuted filed appeals to stop the prosecution. The consolidated cases went the federal Court of Appeals for the Ninth Circuit and a decision was issued yesterday.

The Court decided [PDF] in United States v. McIntosh that the prohibition against spending applies only to cases where marijuana distributors are following the law exactly. The cases were ordered back to the lower courts. The DOJ may only prosecute these cases if the conduct of the distributors was not “completely authorized by state law.” If the DOJ would like to continue prosecuting, there must be hearing to show that something was done outside of state law. From the decision:

DOJ does not prevent the implementation of rules authorizing conduct when it prosecutes individuals who engage in conduct unauthorized under state medical marijuana laws. Individuals who do not strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana have engaged in conduct that is unauthorized, and prosecuting suck individuals does not violate § 542. Congress could easily have drafted § 542 to prohibit interference with laws that address medical marijuana or those that regulate medical marijuana, but it did not. Instead, it chose to proscribe preventing states from implementing laws …

Those who grow medical marijuana must follow the laws exactly, and the slightest deviation may open them to federal prosecution.

From the case summary:

Remanding to the district courts, the panel instructed that if DOJ wishes to continue these prosecutions, the appellants are entitled to evidentiary hearings to determine whether their conduct was completely authorized by state law. The panel wrote that in determining the appropriate remedy for any violation of § 542, the district courts should consider the temporal nature of the lack of funds along with the appellants’ rights to a speedy trial.

From the decision:

We therefore remand to the district courts. If DOJ wishes to continue these prosecutions, Appellants are entitled to evidentiary hearings to determine whether their conduct was completely authorized by state law, by which we mean that they strictly complied with all relevant conditions imposed by state law on the use, distribution, possession, and cultivation of medical marijuana. We leave to the district courts to determine, in the first instance and in each case, the precise remedy that would be appropriate.


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