A letter from the American Civil Liberties Union of San Diego to U.S. Attorney Laura Duffy last Thursday called attention to one of the stranger new tactics in the Obama administration’s war on medical marijuana.
The ACLU’s letter called on Duffy to retract a recent statement in which she seemed to indicate that local government employees who issue land use licenses to medical marijuana collectives might be next in line for federal criminal prosecution.
Weighing in on a proposed ballot measure to regulate medical marijuana collectives in Del Mar, Duffy cautioned that “State and City employees who conduct activities mandated by the Ordinance are not immune from liability under the [Controlled Substances Act].” Federal prosecutors in other parts of the country occasionally have made similar statements during Obama’s Presidency.
Are Del Mar employees in real danger of going to jail if residents vote for the ballot measure in November? In a word, no.
First, notice Duffy’s clever wording: Employees “are not immune” from prosecution, she writes. In order to face federal prosecution, however, a person has to do something that violates federal law. The Voice of San Diego is not immune from prosecution for heroin trafficking. But unless the Voice of San Diego is trafficking heroin, it has nothing to worry about.
What’s missing from Duffy’s memo is an allegation that the Del Mar ordinance would require city or state employees to do anything that is illegal. Issuing an operating permit does not satisfy the elements of the crimes of marijuana “possession” or “distribution,” nor does it make one a conspirator or aider and abettor to crimes committed by the licensee.
As a California court decision cited in the ACLU’s letter held, “governmental entities do not incur aider and abettor or direct liability by complying with their obligations under the state medical marijuana laws.”
Since city and state employees do not violate federal law by issuing permits to medical marijuana dispensaries, there is no basis for prosecuting them. Immunity — the focus of Duffy’s memo — is beside the point.
Second, dozens of cities across California have already adopted laws like Del Mar’s proposed ordinance and government workers have been issuing licenses under those laws for years. Yet none of these government employees have been hauled into federal court.
If federal prosecutors actually believed that city workers were committing drug crimes by issuing zoning permits and business licenses, why haven’t they taken action against them?
U.S. attorneys have issued warning letters to medical marijuana dispensary landlords, threatening to take legal action unless they evict their tenants. They could easily send letters threatening legal action to cities that have established medical marijuana permitting schemes. But they haven’t.
The problem is that sending a letter to a city that has already implemented a licensing law would require prosecutors to actually threaten prosecution. And that would require them to point to some federal law these city workers are violating.
A letter like this could also give interested parties legal standing to test the federal government’s theory in court (where the federal government would lose). Instead, statements like Duffy’s have been reserved for proposed laws and used wording that is ambiguous enough to be construed as a threat even though it isn’t one.
Third, contrary to Duffy’s statement, “State and City employees who conduct activities mandated” by local and state medical marijuana laws are statutorily “immune from liability under” the Controlled Substances Act.
A federal law — 21 U.S.C. § 885(d) — provides that “no civil or criminal liability shall be imposed … upon any duly authorized officer of any State, territory, political subdivision thereof, the District of Columbia, of any possession of the United States, who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.”
By all appearances, Congress enacted this law with undercover police officers who handle drugs during an investigation in mind. But courts have held the law also immunizes officials who implement state and local medical marijuana laws. For example, state appellate courts in Oregon and California have held that the federal immunity provision protects state employees who return mistakenly seized medical marijuana to patients. (If the immunity law did not apply, returning the patient’s property would constitute distribution of marijuana.)
In 2006, the federal Ninth Circuit court of appeals approvingly cited the Oregon decision in United States v. Rosenthal.
If city and state workers who return medical marijuana to patients are immune from prosecution under 21 U.S.C. § 885(d), there is no question that employees who merely issue permits would also be immune.
So, if there’s no legal basis for prosecuting state and local employees tasked with implementing Del Mar’s proposed ordinance, what’s with Duffy’s statement? Is she just making an empty threat?
Again, the answer lies in the words she chose.
Duffy said that her office believes the workers would not be immune if they broke federal drug laws. As the ACLU rightly pointed out, this statement “is easily construed … as a threat of prosecution” but it is not an actual threat.
And that is the perfect balance for Duffy.
An actual threat to prosecute a city worker would have huge costs. It would require Duffy to identify a federal crime she believes is being committed. It could also lead to a court case that her office would almost certainly lose.
The statement that Duffy made, by contrast, is cost free. It allows her to influence the debate in Del Mar by giving a boost to opponents of the ordinance without ever having to defend her legally questionable position to a judge.
Is it possible that Duffy or a different U.S. attorney will one day try to prosecute a city employee for issuing medical marijuana permits? Unless and until the U.S. Supreme Court says in no uncertain terms that a prosecutor cannot do something, there is always a chance one will try.
But based on the absence of prosecutions thus far and the state of the law today, Duffy’s Del Mar memo is almost surely all bark and no bite.
Alex Kreit is a professor and director of the Center for Law and Social Justice at Thomas Jefferson School of Law and the former head of the city of San Diego’s Medical Marijuana Task Force. You can reach him at firstname.lastname@example.org.
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