Fifteen years after the first state legalized medical marijuana — and set up a confrontation with federal law that keeps cannabis illegal — federal law enforcement’s position on medical-marijuana businesses remains something of a mystery.
Two memos written in the past two years that attempt to explain the federal position have not answered medical-marijuana advocates’ questions. Indeed, federal raids in the past month in Colorado and California have only generated more.
Some dispensaries are busted; others are allowed to keep operating. The key differences between those in the two groups are sometimes elusive.
“The Department of Justice policy is clear as mud,” said Lauren Davis, a Denver attorney who represents a number of medical-marijuana business owners. “It seems to be very selective enforcement, and the people who have been targeted and are under surveillance don’t know what the allegations are against them.”
The puzzle amounts to this: All marijuana distribution — medical or not — is illegal under federal law. In a memo this summer, Deputy U.S. Attorney General James Cole made clear that medical-marijuana dispensaries are subject to federal prosecution even if they are in diligent compliance with state law.
But, if that is the case, why have so few been raided in Colorado?
Cole, who was in Denver last week to announce the results of a crackdown on gang members, said he thinks the memo clearly articulates the Justice Department’s position that medical-marijuana businesses do not qualify for federal law enforcement lenience. But Cole also said specific decisions — for instance, the kinds of aggravating factors that place a dispensary higher on a prosecutor’s priority list — are left up to local U.S. attorneys.
“There’s a lot of discretion with each of the U.S. attorneys in how they handle prosecutions in their jurisdictions,” he said.
He declined to answer further inquiries.
Last month, the four U.S. attorneys in California announced plans to target dispensaries that are operating close to schools or are the subject of community complaints. Colorado U.S. Attorney John Walsh has not said what specific factors he considers when deciding whether to raid a dispensary. But he hinted last week that the California approach is not radically different from his.
“I think the distinction between Colorado and California may be overblown,” he said.
Two marijuana-related raids last month — one in Colorado and one in California — provide a good example of the confusing application of Justice Department policy when it comes to dispensaries.
In California, federal authorities raided the farm of Northstone Organics, a medical-marijuana collective that advocates have lauded as a model of legal compliance and good intentions in the state’s still rough-edged medical-marijuana system. In Colorado, agents raided an allegedly off-the-books warehouse connected to people who ran the Earth’s Medicine dispensary, a notable breach of Colorado’s ironclad medical-marijuana business rules if true.
The real head-scratcher came in the aftermaths.
The raid at Northstone — for which no charges have been filed — forced the operation to close, at least temporarily.
But the warehouse raid — in which four people have been charged — had no immediate impact on Earth’s Medicine. Federal officials did nothing to close it or its other, on-the-books cultivation operations. The dispensary only closed after state authorities denied its business licenses this week.
Matthew Cohen, Northstone’s director, said he thinks federal authorities targeted him because he has made an extra effort to show compliance with state and local laws.
“We do not meet any threshold stated by the U.S. attorneys,” Cohen said. “. . . There’s some reason they don’t want regulation or progress in this arena.”
Raids are only the most visible way in which federal authorities flex their muscles when it comes to medical-marijuana businesses. In recent months, the Internal Revenue Service has taken to auditing dispensary tax returns, and prosecutors have warned landlords their property could be seized if they rent to dispensaries. Worried banks have closed medical-marijuana business accounts.
University of Denver law professor Sam Kamin said it is this kind of quiet approach that likely will have more impact — and be a better gauge of federal policy toward dispensaries — than raids.
“It doesn’t look like it’s going to be SWAT teams coming through front doors,” he said. “There’s lots of additional squeezes.”
