Medical marijuana distributors subject to federal prosecution despite state law

Montana voters approved a medical cannabis measure in 2004, but some provisions remain in limbo after a recent court ruling.

By Alicia Gallegos — Posted Feb. 13, 2012

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A Montana medical marijuana law does not shield cannabis dispensers from federal prosecution, a district court has ruled.

The ruling will decrease the number of doctors willing to recommend medical marijuana to patients, as well as the number of entities that distribute medical cannabis, said Timothy Baldwin, an attorney for the plaintiffs. "The way the federal government has treated the industry in Montana and other states, it has caused people to become scared of being targeted [for prosecution]. That would include doctors," he said.

Montana voters approved a measure to legalize medical marijuana in 2004. The statute allows patients to use the drug with a written recommendation from a physician.

A group of caregivers and marijuana growers and distributors sued the federal government in 2011 after a raid by authorities confiscated marijuana plants and related equipment. The plaintiffs claimed that the raids were unconstitutional because Montana law allowed them to grow and produce marijuana for medical consumption. They insisted that the U.S. Dept. of Justice had said it would not actively prosecute medical marijuana caregivers.

But in his Jan. 20 opinion, U.S. District Court Judge for the District of Montana Donald W. Molloy said that even if the plaintiffs' alleged conduct was legal under state law, the conduct was illegal under the federal Controlled Substances Act.

"The federal government has never given a free pass to produce and consume marijuana, even for medical purposes," Molloy said. "In the so-called Ogden Memo, the Dept. of Justice communicated to its attorneys that certain marijuana users and providers would be a lower priority for prosecution than others. ... But the department also made clear that it did not intend to 'legalize' marijuana," nor would it have the power to do so.

The judge threw out the plaintiffs' case, ruling that the raids did not violate their constitutional rights. The plaintiffs plan to appeal the judge's decision, Baldwin said. A spokeswoman for Michael W. Cotter, U.S. attorney for the District of Montana, declined to comment on the ruling.

In an April 20, 2011, letter to Montana state senators, Cotter said that growing, distributing and possessing marijuana in any capacity, other than as part of a federally authorized research program, violates federal law.

"The prosecution of individuals and organizations involved in the trade of any illegal drugs and the disruption of drug trafficking organizations is a core priority of the [Justice] Dept. This core priority includes prosecution of business enterprises that unlawfully market and sell marijuana," Cotter wrote.

The Montana Medical Assn. was not involved in the case. In general, the association's position is that marijuana should be used only in the safest, legally approved way and should "be subject to the same regulatory scrutiny as any other psychoactive drug with the potential for abuse." More research on the safety, dosage and effectiveness of medical marijuana is needed, the association said in a statement.

Second lawsuit ongoing

States should be able to determine the best approaches to health-related issues for citizens without government involvement, said Chris Lindsey, an attorney focusing on medical marijuana law and a board member of the Montana Cannabis Industry Assn., a medical marijuana advocacy group. The fact that the government is ignoring state laws and supporting prosecution of users harms patients who need medical marijuana the most, he said.

"If you're going after the only practical source the patients have [to obtain medical marijuana], you really are going after the patients and making it as difficult as possible to obtain medical marijuana," he said. "One wrong move and you're a felon."

Another lawsuit that focuses on Montana's medical marijuana law is ongoing. In that case, the Montana Cannabis Industry Assn. sued the state over revised regulations of the law. In June 2011, a judge granted a preliminary injunction against some of the revised restrictions, including a measure preventing an individual doctor from recommending medical marijuana to more than 25 patients a year. The state appealed.

Disputes among state and federal entitles over marijuana probably will continue until the drug is reclassified, Lindsey said. Rescheduling marijuana from a Schedule I to a Schedule II classification would allow the substance to be better researched and reduce some doctors' concerns about recommending it, he said.

"Doctors obviously don't want to do something that would land them in hot water," he said. "A good number of them feel marijuana can benefit individuals, but it's not worth the exposure and the risk that they might somehow end up in trouble."

Several governors, as well as the California Medical Assn., are pushing to reclassify marijuana. In October 2011, the CMA said physicians need more research on the drug to counsel patients better.

Sixteen states have legalized medical marijuana. Many of the statutes have been subject to legal challenges asserting that state prerequisites for obtaining medical marijuana are too strict.

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Case at a glance

Can the federal government prosecute medical marijuana distributors who legally provide medical marijuana under state law?

The U.S. District Court for the District of Montana said yes. The court said that even if distributors' conduct is legal under state law, such conduct is illegal under the federal Controlled Substances Act. Anyone who provides medical marijuana is subject to federal prosecution, the court said.

Impact: Medical marijuana distributors, patients and doctors who order the drug say they might be more hesitant to participate in the state's medical marijuana program.

Source: Montana Caregivers Assn. LLC, et al, vs. United States of America, U.S. District Court for the District of Montana, Jan. 20

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