Justice Department and Obama reverse stance on medical marijuana raids

C.J. Ciaramella Contributor
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The Justice Department and the Obama administration appear to have backtracked on early promises to respect state medical marijuana laws, opening the door for more federal raids on medical marijuana growers and dispensaries.

In a memo sent June 29 to U.S. attorneys, Deputy Attorney General James Cole said cultivators and sellers of medical marijuana were in clear violation of the Controlled Substances Act and open for prosecution. That’s a marked departure from the Obama administration’s early rhetoric, which was that those in compliance with state medical marijuana laws wouldn’t be a priority for federal law enforcement. (As DOJ reviews legality of merger, it’s AT&T versus Sprint)

On the campaign trail in 2008, Obama said, “I’m not going to be using Justice Department resources to try to circumvent state laws on this issue.”

In an October 2009 memo, previous Deputy Attorney General David Ogden said U.S. attorneys “should not focus federal resources” on prosecuting those who are in “clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”

Attorney General Eric Holder, an Obama appointee, also signaled that the administration would respect state medical marijuana laws.

“For those organizations that are doing so sanctioned by state law, and doing it in a way that is consistent with state law, and given the limited resources that we have, that will not be an emphasis for this administration,” Holder said in 2009.

In Cole’s memo, which was written in response to inquiries from U.S. attorneys regarding the 2009 directive, Cole struck quite a different tone.

“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,” Cole wrote. “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.”

Cole wrote that the new guidelines “are entirely consistent with the October 2009 memorandum.”

While it’s arguable whether the new memo is consistent with the Justice Department’s previous stance, it is in fact entirely consistent with how the federal government has been acting. In March, federal authorities raided 26 medical marijuana dispensaries in 13 Montana cities. Feds also raided dispensaries in Los Angeles and Seattle.

The increase in raids and the new memo leave state-approved marijuana dispensaries on shaky ground, especially in places where such statutes are still new or in development, such as in Washington, D.C. A lawsuit was filed in May against the federal government seeking to stop enforcement of the Controlled Substances Act in D.C. until a judicial review of D.C.’s medical marijuana laws.

A similar lawsuit has been filed in Arizona.

The Justice Department did not immediately respond to requests for comment.