Arizona Republic: “Phoenix has suspended its 180-day requirement for holders of medical-marijuana permits to seek state licenses. . . . 87 applications for medical-marijuana operations came into the city since Jan. 1. Of those, only about 20 have been approved.”
Bloomberg: “When self-described serial entrepreneur Ian Christensen looks around the white-walled medical office he plans to lease in Paradise Valley, Arizona, he sees opportunity. Now all he needs is some pot. Like hundreds of other would-be marijuana moguls, Christensen courted investors, hired attorneys, negotiated leases, cleared zoning hurdles, purchased equipment and sank tens of thousands of dollars into plans to pioneer an industry Arizona voters created by referendum in November.”
ACLU: “The American Civil Liberties Union today asked a federal judge to throw out a lawsuit filed in May by Arizona Gov. Jan Brewer that seeks to have her state’s medical marijuana law struck down. In a motion filed today in the U.S. District Court for the District of Arizona, the ACLU charges that the lawsuit should be dismissed because, among other reasons, there has been no threat that state employees charged with carrying out the state’s law would be prosecuted by federal authorities. ‘On the pretext of protecting her state employees, Gov. Brewer is simply seeking to thwart the will of Arizona’s voters and unconscionably block sick people from accessing their vital medicine’,””
Read the ACLU’s Motion to Dismiss.
Phoenix New Times: “Governor Jan Brewer believes that a ‘clarification’ by the feds on medical-marijuana programs proves she took the ‘proper course of action’ in halting the voter-approved dispensary program. . . . some representatives of the dispensary industry acknowledge that Cole’s letter presents another hurdle that will delay the full roll-out of the program as voters intended it.”
Arizona Daily Star: “A new memo from a top Justice Department official could undermine the chances of ever setting up a system of medical-marijuana growers and dispensaries in Arizona. . . . [The Department of] Justice has noticed several states have enacted laws to allow ‘multiple large-scale, privately-operated industrial marijuana cultivation centers,’ some of which could have revenues of millions of dollars a year. ‘The (earlier) memo was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law,’ Cole wrote. He said anyone in the business of cultivating, selling or distributing marijuana is violating the federal Controlled Substances Act, ‘regardless of state law.’ That also applies to those ‘who knowingly facilitate such activities,’ he said.”
KTVQ.com: “It was something Mark Higgins thought he might have to do someday, but something he was hoping to avoid. However, on July 1st, a little over a year after opening Montannabis on North 11th Street in Billings, he closed his business.”
Record Gazette: “A Beaumont medical marijuana dispensary that had been closed down by police is challenging the city of Beaumont to prove that it has done anything wrong, slapping the city with a minimum $600,000 civil suit seeking the return of what it feels were illegally collected fines of $1,000 a day. Joseph Rhea, a Palm Springs-based criminal defense attorney who represents the dispensary, Oak Tree Alternative Care, filed a civil suit at Riverside Superior Court on June 2, claiming that the city’s ordinance banning marijuana dispensaries was preempted by state law and should be considered null and void.”
Arizona Republic: “A Phoenix zoning administrator has approved a medical marijuana dispensary for Ahwatukee Foothills, despite objections from officials at two nearby schools and an area pediatrician. On Thursday, Foothills resident Matt Waltz, who owns a Tempe construction company, obtained a zoning variance for a dispensary in a shopping center at the southeastern corner of 46th Street and Chandler Boulevard.”
On July 1, 2001, Arizona Governor Jan Brewer and Attorney General Tom Horne issued the following joint press release:
“I‟m disappointed in this latest memorandum from the U.S. Department of Justice, which offers little more than continued confusion and doublespeak regarding the legality of locally-authorized medical marijuana programs in Arizona and other states,” said Governor Jan Brewer. “If this memo was an attempt at clarity, it failed.”
“Serious questions remain,” Governor Brewer continued. “Might state-licensed medical marijuana dispensaries be targeted for federal prosecution? Are state employees at risk if they license dispensaries according to state law? In light of these and other questions, the proper course of action was the one taken by the state: to place the dispensary process on-hold while we seek court guidance regarding the legality of the overall program.”
The Arizona Department of Health Services had been implementing provisions of the Arizona Medical Marijuana Act up until the agency received a letter, dated May 2, 2011, from U.S. Attorney Dennis Burke. That letter cast serious doubt on the legality of Arizona’s medical marijuana program and the potential culpability of state employees who administer the program. Governor Brewer and Attorney General Horne responded by calling a “time out” on the state‟s issuance of licenses to marijuana dispensaries, and filed a declaratory judgment asking a federal court to rule on the legality of the overall program.
That legality remains very much in question. This latest memo from Deputy U.S. Attorney General James Cole, dated June 29, 2011, notes that “persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law.” The memo never addresses the potential legal culpability of state employees who administer medical marijuana programs according to state law.
“The federal government knew there was broad concern about whether ‘facilitate’ sale was a term that could endanger state employees, and they chose to remain silent,” said Attorney General Horne. “This letter represents a 180-degree turn from the Ogden memo, which said there should be low priority for those in clear and unambiguous compliance with state law, and ‘low priority’ was interpreted to mean they would not prosecute. Now they say they will prosecute those involved in distributing or ‘facilitating’ distribution, regardless of whether or not they are in compliance with state law. A federal court needs to resolve this conflict between federal and state law, as is traditionally one of the roles of the federal judiciary.”
When he was campaigning for President of the United States Barack Obama said to the Oregon Mail Tribune on March 22, 2008:
“What I’m not going to be doing is using the Justice Department resources to try to circumvent state medical marijuana laws.”
On June 29, 2011, the President’s Justice Department sent a letter to all attorneys in the Justice Department that included this statement:
“Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law.”
What makes this broken promise especially bad is that the overwhelming majority of Americans favor the legalization of medical marijuana. See the ABC News story called “High Support for Medical Marijuana, which includes the results of an ABC poll released January of 2010 that found that 81% favored legalization.
Marijuana Policy Project Campaign
Today Rob Kampia, Executive Director of the Marijuana Policy Project sent an email with the subject “Betrayed.” The text of his message is below. If you oppose the Justice Department’s continued war on medical marijuana, you should click on the links in his message to voice your position to the powers that be.
Two days ago, without any public comment, President Obama broke the above campaign promise to medical marijuana patients when his Justice Department issued a new departmental policy for enforcement of federal marijuana laws in states with medical marijuana programs. Deputy Attorney General James Cole stated that while federal prosecutors should not go after sick and dying individuals, they may choose to prosecute businesses that provide marijuana to patients, even when the providers are abiding by state law.
To put it simply, this is absurd.
Please email the White House today, and ask the Obama administration to respect the rights of the states – and the needs of the patients – by leaving medical marijuana providers who act in compliance with state law alone.
Despite the memo’s claim to the contrary, it contradicts what had been official DOJ policy and flies in the face of numerous past statements by the president and his attorney general. In May 2010, Attorney General Eric Holder testified in Congress that “if the entity is, in fact, operating consistent with state law, and is not — does not have any of those factors involved that are contained in that
Deputy Attorney General memo, … [threatening to arrest the dispensary’s employees] would be inconsistent with what the policy is as we have set it out.”Please tell the Obama administration that providing channels for patients to safely obtain their doctor-recommended medicine is a crucial component of workable medical marijuana laws. Then, please post this link to your Facebook or Twitter account. Without necessary medical marijuana providers, many patients may have to revert to buying marijuana from the criminal market.
Finally, if you were an Obama supporter in any capacity during his 2008 campaign, please call his 2012 campaign headquarters and demand that he keep his promise to medical marijuana patients.
Thank you kindly for supporting marijuana policy reform.
Sincerely,
Rob Kampia
Executive Director
Marijuana Policy Project
In a June 29, 2011, letter from James M. Cole, Deputy Attorney General, the U.S. Department of Justice has apparently “clarified” its position on whether it will prosecute people who grow and distribute medical marijuana for money while complying state legal medical marijuana laws. The answer is – YES! The complex text of the letter follows:
U.S. Department of Justice
Office of the Deputy Attorney General
Washington. D.C. 20530
June 29, 2011
MEMORANDUM FOR UNITED STATES ATTORNEYS
FROM: James M. Cole Deputy Attorney General
SUBJECT: Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use
Over the last several months some of you have requested the Department’s assistance in responding to inquiries from State and local governments seeking guidance about the Department’s position on enforcement of the Controlled Substances Act (CSA) in jurisdictions that have under consideration, or have implemented, legislation that would sanction and regulate the commercial cultivation and distribution of marijuana purportedly for medical use. Some of these jurisdictions have considered approving the cultivation of large quantities of marijuana, or broadening the regulation and taxation of the substance. You may have seen letters responding to these inquiries by several United States Attorneys. Those letters are entirely consistent with the October 2009 memorandum issued by Deputy Attorney General David Ogden to federal prosecutors in States that have enacted laws authorizing the medical use of marijuana (the “Ogden Memo”).
The Department of Justice is committed to the enforcement of the Controlled Substances Act in all States. Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large scale criminal enterprises, gangs, and cartels. The Ogden Memorandum provides guidance to you in deploying your resources to enforce the CSA as part of the exercise of the broad discretion you are given to address federal criminal matters within your districts.
A number of states have enacted some form of legislation relating to the medical use of marijuana. Accordingly, the Ogden Memo reiterated to you that prosecution of significant traffickers of illegal drugs, including marijuana, remains a core priority, but advised that it is likely not an efficient use of federal resources to focus enforcement efforts on individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or their caregivers. The term “caregiver” as used in the memorandum meant just that: individuals providing care to individuals with cancer or other serious illnesses, not commercial operations cultivating, selling or distributing marijuana.
The Department’s view of the efficient use of limited federal resources as articulated in the Ogden Memorandum has not changed. There has, however, been an increase in the scope of commercial cultivation, sale, distribution and use of marijuana for purported medical purposes. For example, within the past 12 months, several jurisdictions have considered or enacted legislation to authorize multiple large-scale, privately-operated industrial marijuana cultivation centers. Some of these planned facilities have revenue projections of millions of dollars based on the planned cultivation of tens of thousands of cannabis plants.
The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law. Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law. Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution. State laws or local ordinances are not a defense to civil or criminal enforcement of federal law with respect to such conduct, including enforcement of the CSA. Those who engage in transactions involving the proceeds of such activity may also be in violation of federal money laundering statutes and other federal financial laws.
The Department of Justice is tasked with enforcing existing federal criminal laws in all states, and enforcement of the CSA has long been and remains a core priority.
Phoenix New Times: “It doesn’t look like Cole’s new letter explicitly states that state workers have some sort of amnesty from federal prosecution. On the other hand, it doesn’t state that Arizona Department of Health Services employees are at risk of getting busted, either. No doubt, Obama doesn’t want to go down in history as the guy who put DHS Director Will Humble behind bars simply for going along with the wishes of Arizona voters.”
Bloomberg: “Marijuana Growers in States Allowing Medical Use May Be Charged, U.S. Says”
Reason Online: “Obama Administration Overrides 2009 Ogden Memo, Declares Open Season on Pot Shops in States Where Medical Marijuana Is Legal“
MercuryNews.com: “Authorities arrested two men Tuesday after raiding and searching three Tri-City area businesses — a Newark cannabis club and the offices of two Fremont psychics — and a Salinas storefront, each of which are suspected sites of drug-related crimes, a state Department of Justice spokeswoman said. Police believe each of the businesses is tied to NBD Collective”
South County Spotlight: “Just after opening earlier this year, the sole remaining medical marijuana dispensary in Columbia County voluntarily shut down late last week, closing the door on what was largely becoming a growing illegal industry in Oregon, according to federal justice officials. Early this month, U.S. Attorney Dwight Holton sent letters to area marijuana dispensaries saying their operations were illegal and owners would be prosecuted if they remained open”
Lew Rockwell.com: “Einsatzgruppen (German) – ‘Special task forces’ composed of police, military, and intelligence personnel deployed to target and eliminate people identified as ‘anti-German elements’ by the National Socialist regime; also referred to as ‘mobile killing squads.’ . . . Arizona’s coercive sector has benefited tremendously from ‘the overwhelming success of the asset forfeiture [program] in Arizona,’ boasts the Commission. In the year following creation of the sixteen state counter-narcotics task forces, revenue from asset forfeitures more than doubled – from $19,576,626 in 2006 to $40,297,456 in 2007. . . . What this means, of course, is that ‘local’ police agencies are essentially support systems for a plundering army that is literally waging war against the people in the guise of narcotics enforcement.”
Record Gazette: “Law enforcement officials raided a medical marijuana dispensary in Beaumont on Tuesday, serving search warrants at its nondescript location on 6th Street and four other locations, and arresting five people, including its owner. Members of the Allied Riverside Cities Narcotic Enforcement Team (ARCNET) concluded a seven-month long criminal investigation of Oak Tree Alternative Care. The business had been operating there under the guise of a medicinal marijuana collective“
Phoenix New Times: “In a creative work-around to the state’s lack of marijuana dispensaries, a group of card-holding patients are offering various strains of buds, edibles and tinctures in exchange for donations from club members. The Arizona Compassion Club operates out of several Valley offices, and the people running the clubs believe they’re perfectly legal.”
Ahwatukee Foothills News: “Medical marijuana has come to the forefront of several legal battles, both local and federal. The most significant is the state’s lawsuit against the U.S. government — a suit that is holding up applications to open medical marijuana dispensaries. . . . As hopeful dispensary operators wait out the decision, medical marijuana patients are able to grow and utilize their own pot if they have a medical marijuana card that also authorizes them to grow.”
East Valley Tribune: “Governor Jan Brewer and Attorney General Tom Horne are taking heat for seeking clarification from the feds on the status of Arizona’s newest medical marijuana law. They don’t deserve it.”
The arrest of Gary Ferguson and others by the Gilbert Police Department raises the question of whether an Arizona medical marijuana patient cardholder can sell marijuana to another person who is licensed by the Arizona Department of Health Services as a medical marijuana patient or caregiver. Several people have been or will be arrested as a result of Mr. Ferguson’s operation of the Medical Marijuana Advocacy Group where card-holding Arizona medical marijuana patients were able to gather to smoke pot and sell marijuana to other licensed patients. Mr. Ferguson told a reporter that he believes that Arizona Revised Statutes Section 36-2815 authorizes Arizona licensed patients sell marijuana to other Arizona licensed patients. For more on this arrest, see “Gilbert police raid of medical-marijuana group raises questions.”
Arizona Revised Statutes Section 36-2815.C states:
“Any cardholder who sells marijuana to a person who is not allowed to possess marijuana for medical purposes under this chapter shall have his registry identification card revoked, and shall be subject to other penalties for the unauthorized sale of marijuana and other applicable offenses.”
Unfortunately for those arrested in the Medical Marijuana Advocacy Group raid, this statute does not say that Arizona medical marijuana patients may sell marijuana to other licensed Arizona medical marijuana patients. Nor does this statute authorize caregivers to sell marijuana to other caregivers or patients.
The issue of a licensed patient or caregiver supplying marijuana to a third party is addressed in Arizona Revised Statutes Section 36-2811.B, which states:
“A registered qualifying patient or registered designated caregiver is not subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege, including any civil penalty or disciplinary action by a court or occupational or professional licensing board or bureau . . . For offering or providing marijuana to a registered qualifying patient or a registered designated caregiver for the registered qualifying patient’s medical use or to a registered nonprofit medical marijuana dispensary if nothing of value is transferred in return and the person giving the marijuana does not knowingly cause the recipient to possess more than the allowable amount of marijuana.”
This statute is a safe harbor for licensed Arizona medical marijuana patients who supply marijuana to other licensed Arizona medical marijuana patients ONLY IF THE SUPPLIER GETS NOTHING OF VALUE from the receipient. If the supplier receives any money or any property of value, Arizona’s medical marijuana laws do not protect the supplier from prosecution for violating Arizona state or local marijuana laws. Nor will the supplier avoid prosecution under federal law because the U.S. Attorney and many of the state U.S. Attorneys including Arizona’s Dennis Burke have said the U.S. will not generally spend U.S. resources prosecuting patients and caregivers who comply with the laws of a state like Arizona that have legalized medical marijuana. An Arizona licensed medical marijuana patient who sells marijuana to another Arizona licensed patient is not complying with Arizona’s medical marijuana laws and could therefor be prosecuted for violating federal marijuana laws.
Arizona Republic: “Two House members introduced a bill Thursday that would remove marijuana from the list of federal controlled substances and cede to the states enforcement of laws governing pot.”
Livington Daily.com: “Police this afternoon again raided the Marshall Alternatives medical marijuana dispensary”
The Redlands Daily Facts: “A Riverside County multi-agency task force has arrested the owner of a medical marijuana dispensary who authorities say weathered a ban for more than two years by paying a $1,000-a-day fine. . . . Oak Tree Alternative Care was skirting Proposition 215 and was selling marijuana for profit”
Espresso Pundit: “I get this comment all the time… Republicans pick and choose which issues the federal government should control. You guys think Arizona should have its own immigration policy, but you defer to the federal government on medical marijuana. Isn’t your whole ‘states rights’ argument just a convenient tool? It’s actually a really good question“
Phoenix New Times: “Four U.S. Congressmen want Attorney General Eric Holder to clarify the Obama Adminstration’s position on medical marijuana, and what they’re asking for cuts down party lines. Ironically, it’s two Democrats who are pushing for states’ rights, while two Republicans are demanding that the federal government keep its stranglehold on the marijuana industry.”
Huffington Post: “Rep. Barney Frank (D-Mass.) and Rep. Ron Paul (R-Texas) will introduce legislation on Thursday to end the federal ban on marijuana and let the states decide whether to legalize it.”
Wall St. Journal: “Cities Crack Down on Proliferation, Say Medical Marijuana Not So Medical – In a furious backlash against the booming medical-marijuana industry, scores of cities and counties across Colorado have banned new pot shops and cannabis greenhouses or moved to oust established businesses. . . .But the public backlash may soon begin to crimp access, patient advocates say. At least 34 of Colorado’s 64 counties have enacted bans, as have cities large and small, urban, suburban and rural. Some of the jurisdictions that still permit pot shops have imposed tight restrictions, on top of the nearly 200 pages of regulations imposed by the state.”
HuffPost Denver: “Marijuana dispensaries in states that have legalized medical pot are struggling to obtain service from banks and credit-card companies, pressured by federal authorities who consider illegal the business estimated at $1.7 billion annually. Operators and supporters of marijuana dispensaries say banks are turning away their business because they risk falling afoul of anti-money-laundering and drug-trafficking laws. The largest U.S. bank, Bank of America Corp, said it started withdrawing services from dispensaries after receiving a warning from the U.S. Drug Enforcement Administration in late 2007 or early 2008.”
One of the plaintiffs in the O.F. & C., Inc. vs. Humble lawsuit filed in the Arizona Court of Appeals is an organization called Protect Arizona Patients, Inc. This nonprofit corporation is leading the fight to force Arizona to comply with and fully implement Proposition 203. If you agree with this position, you should consider making a contribution to the O.F. & C., Inc. vs. Humble legal fund. Litigation is not cheap and every dollar counts. For more about this Protect Arizona Patients and its fight to force DHS to implement the medical marijuana dispensaries, go to its website.