Justice Dept. memo lets feds shut down pot dispensaries

By Bob Egelko San Francisco Gate 

In a newly disclosed memorandum, President Obama’s Justice Department has told federal prosecutors they can file criminal charges against medical marijuana users and suppliers and shut down pot dispensaries, despite a congressional ban on federal interference with medical marijuana laws in California and other states.

The Justice Department had previously made its intentions clear by refusing to drop pending marijuana prosecutions and pursuing forfeiture actions against dispensaries, including Oakland’s huge Harborside Health Center. But the Feb. 27 memo, made public Wednesday by Tom Angell of the advocacy group Marijuana Majority, provides the department’s rationale for considering the congressional spending restrictions largely toothless.

The budget language passed in mid-December prohibits the department from using its funds to stop states from “implementing their own laws” on medical marijuana. But Patty Merkamp Stemler, chief of the Justice Department’s Appellate Section, told federal prosecutors the congressional action “addresses actions directed against states, not individuals.”

The restrictions, Stemler wrote, bar the department “from impeding the ability of states to carry out their medical marijuana laws, not from taking action against particular individuals or entities, even if they are acting compliant with state law.”

She noted that Congress had considered, but failed to pass, legislation that would have explicitly forbidden federal prosecution for medical marijuana use that states have legalized. The congressional budget restrictions prohibit the department only from challenging a state’s medical marijuana law in court or from suing a state or its officials over the law, Stemler said.

Low-priority patients

As a matter of policy, Stemler said, the Justice Department does not want its prosecutors to go after seriously ill marijuana users or their caregivers, or to prosecute dispensaries that “adhere to a strong and effective state regulatory system.”

She was referring to policies previously stated by Obama administration officials that tell federal prosecutors to focus on major drug traffickers and give their lowest priority to cases against patients and suppliers who are complying with state medical marijuana laws. Federal courts have ruled that those policies are not legally binding, leaving individuals powerless to require the government to follow them.

California lawmakers

The sponsors of last year's budget restrictions, Reps. Dana Rohrabacher, an Orange County Republican, and Sam Farr, a Democrat from Carmel, say their amendment prohibited the Justice Department from prosecuting medical marijuana cases or seizing dispensaries that comply with state law. They have asked the department's inspector general to decide whether the department is complying with the law.

California, which became the first state to legalize medical marijuana in a 1996 ballot initiative, has no statewide regulatory system for pot growers or suppliers, a vacuum that would be filled by pending state legislation. The lack of controls helped to open the door for federal prosecutors to take forfeiture actions in 2011 that have led to the closure of hundreds of medical marijuana dispensaries.

One forfeiture case is now before the federal appeals court in San Francisco, which is considering challenges to U.S. Attorney Melinda Haag’s suit to shut down Harborside, the nation’s largest licensed medical marijuana dispensary, serving about 108,000 patients. Another panel of the appeals court may soon decide whether the congressional budget restrictions affect the federal conviction and one-year prison sentence of Charles Lynch, former owner of a locally licensed pot dispensary in Morro Bay (San Luis Obispo County).

The House of Representatives, meanwhile, has voted to renew the budget restrictions for the fiscal year that starts Oct. 1.

Narrow interpretation

Mike Liszewski, governmental affairs director for the marijuana advocacy group Americans for Safe Access, said Wednesday the Justice Department’s newly disclosed interpretation of the law was far too narrow.

A state can’t “implement” its medical marijuana law, Liszewski said, “if patients can’t use ID cards to get their medicine” because of the risk of prosecution.