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It’s unclear how state could block pot prosecutions

Oregon officials say they’ll fight to protect state-regulated cannabis businesses from federal prosecution, but offer no strategies.

By Claire Withycombe

Published on January 5, 2018 7:47PM

Oregon officials say they’ll fight to protect state-regulated cannabis businesses from federal prosecution, but offer no strategies.

Pamplin Media Group

Oregon officials say they’ll fight to protect state-regulated cannabis businesses from federal prosecution, but offer no strategies.

Capital Bureau

SALEM — Several legal observers say that there are limited ways for Oregon officials to defend state-regulated cannabis businesses in the courts in light of changes to federal guidance on enforcement of the drug.

Marijuana has been legal under Oregon law since July 2015, but it remains illegal under the federal Controlled Substances Act.

U.S. Attorney General Jeff Sessions on Thursday rescinded an Obama-era policy, referred to as the Cole Memo, that guided federal law enforcement to focus on larger-scale violations of federal law rather than target state-compliant marijuana operations. The action opens even marijuana businesses complying with state regulations open to prosecution.

Sessions did not mandate such prosecutions, but instead gave federal prosecutors in each state authority to decide where they would focus their enforcement actions.

While it doesn’t appear likely that Billy Williams, the U.S. attorney for the district of Oregon, will pivot in light of that change, state officials say they are exploring legal options.

In a press conference Thursday, Democratic Gov. Kate Brown stressed what she called a coordinated effort among state, local, and federal law enforcement to implement the Cole Memo’s guidance.

“The result of all this collaborative work is that we have now a thriving marijuana industry,” Brown said.

However, the governor did not provide any specifics on what legal recourse might be available to the state in the event that federal prosecutors pursue the state’s cannabis industry.

“We’ve been in close communication with the state attorney general, Ellen Rosenblum, and will be pursuing all legal options available to us,” Brown said.

On Thursday Rosenblum said she would do everything in her “legal authority” to protect Oregon’s regulated pot businesses, though neither she nor Brown proposed a specific strategy to block federal prosecutors from enforcing drug laws passed by Congress.

“...We are still monitoring any future decisions, and reviewing our legal options,” Kristina Edmunson, a spokeswoman for the Oregon Department of Justice, wrote in an email Friday.

Henry Wykowski, a San Francisco attorney specializing in cannabis, said Oregon could become a “sanctuary state” for marijuana, much like Oregon is a sanctuary state for undocumented immigrants.

A Democratic state assemblyman in California has proposed a law there to do just that.

However, the state couldn’t intervene in a criminal case brought by federal authorities, Wykowski said.

“What they could do would be to provide testimony that the conduct of the defendant is legal and regulated under Oregon law, and it’s approved, and whatever they’re doing is entirely legal,” Wykowski said. “That could be challenged, but that’s the position I would advocate for them to take.”

Perry Salzhauer, a Portland attorney and partner in the Green Light Law Group, a law firm specializing in the marijuana industry, said he wasn’t sure whether testimony of that nature would be deemed relevant by a judge because there are no exemptions in the federal Controlled Substances Act for state compliance.

However, both attorneys noted that the court of public opinion may serve as a deterrent to bringing such cases before a jury in the first place.

“The best defense we have is the political system,” Salzhauer said.

A similar case in Oakland, Calif., where the defense was prohibited from using such testimony, caused a “big uproar,” Wykowski said, and prosecutors have since “backed off.”

Wykowski said after the fact, when jurors learned the defendant was complying with state law and licensed by the city of Oakland, they sent a letter to the judge in that case saying that if they had known that the defendant was operating legally under state law, they would have voted differently.

In a civil asset forfeiture case, a state or locality could file a claim saying that the move was detrimental to their ability to collect taxes, as the city of Berkeley did in a case brought by a district U.S. Attorney’s Office against the Berkeley Patients Group, a medical marijuana outlet.

Although that claim was rejected in the trial court, the case was dismissed before an appeal on the city’s complaint could be decided, Wykowski said.

A provision in federal law, the Rohrabacher-Farr amendment — also known as the Rohrabacher-Blumenauer amendment — prevents the U.S. Department of Justice from spending money to interfere with the implementation of state medical cannabis systems, says Bear Wilner-Nugent, a Portland attorney.

To an extent, Wilner-Nugent says, Oregon’s medical and recreational systems have been integrated: medical marijuana patients can buy the product in the same shops that recreational marijuana consumers do, although patients are exempt from paying state marijuana taxes.

So interfering with the system as a whole could bolster a state argument that the federal government was interfering with the medical system in a way that’s not lawful.

“State officials could argue that the Rohrabacher-Blumenauer amendment shields the state from federal interference in marijuana programs,” said Wilner-Nugent.

Salzhauer said the state could also sue the federal government in civil court, arguing that the Controlled Substances Act is unconstitutional.

The 10th Amendment, which contains what’s called the “anti-commandeering doctrine,” prohibits the federal government from requiring states to enforce federal laws.

The authors of a 2015 UCLA Law Review article wrote that the anti-commandeering doctrine represented a “significant constitutional counterweight” to the Constitution’s Supremacy Clause, which says that federal law trumps conflicting state law.

However, it’s not clear how a 10th Amendment argument might turn out in practice, Salzhauer said.

“They could make a variety of 10th Amendment-based arguments as to why they should be allowed to continue the program, but there has been so little legal jurisprudence on that,” Salzhauer said.

That’s part of why Salzhauer maintains that the political system may be the best defense for Oregon’s burgeoning cannabis industry.

More people support legalizing marijuana, and that puts pressure not just on current elected officeholders, but also on any prosecutors with political ambitions.

A U.S. attorney who pursued a case against a marijuana business that was in compliance with state law could face a “backlash,” especially in Portland.

“You would see protests outside the courthouse, it would be a big deal,” Salzhauer said. “And again, whoever tries to do that, good luck trying to get people to vote for you.”


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