As a criminal defense attorney who specializes in drug offences, I am fascinated by the conflicting state and federal laws on the use and cultivation of marijuana in California. My law firm is based on Los Angeles, a city that has long been at the forefront of efforts to reform cannabis laws. In addition, I am among a minority of defense lawyers in California who work on drug cases at both the state and federal levels. The nuances of state and federal law regarding marijuana are critical to my practice, but also the marijuana industry. A significant new decision from the Ninth Circuit provides important guidance on how courts in California will deal with federal prosecutions of marijuana cases in the Golden State.
The US Court of Appeals for the Ninth Circuit ruled in United States v. Gilmore that the federal government can prosecute cases where marijuana is grown on federal land in California. This may come as a surprise to some because marijuana is legal for both medical and recreational use in California. However, marijuana remains a Schedule I prohibited drug under federal law, and the U.S. Constitution provides that the federal government is free to enforce its laws on federal lands.
The Ninth Circuit’s decision was in the case of Russell Gilmore and Richard Hemsley, who were charged with conspiracy and growing marijuana illegally on land under control of a federal agency in El Dorado County, east of Sacramento. The Ninth Circuit in Gilmore affirmed the district court’s denial of a motion to enjoin the federal government’s prosecution.
The defendants in Gilmore tried to stop the prosecution of their case under the Consolidated Appropriations Act, which Congress passed to bar the Department of Justice from using government funds in ways that prevent states from implementing medical marijuana laws. In my view, Congress’ prohibition could reasonably be interpreted as banning or at least discouraging prosecutions of medical marijuana growers in states where marijuana is legally grown and consumed. This reading would allow states to implement local medical marijuana laws without federal interference.
However, the Ninth Circuit found in Gilmore that even if state law tolerated marijuana cultivation on public land, enforcing federal law that prohibits cultivation on federal land does not “prevent” California from otherwise implementing its medical marijuana regime. The result in Gilmore was that the defendants, who did not even know that their medical marijuana plants were on federal land, were subject to prosecution by the federal government.
The decision was an unexpected turn for the defendants, as well as some cannabis attorneys and the marijuana industry in general. The U.S. Justice Department had laid off prosecutions for medical marijuana cultivation in the Obama era, and California marijuana bloomed in the meantime.
However, the ruling was not surprising to me. In an earlier decision, United States v. McIntosh, the Ninth Circuit concluded that Congress’ prohibition applies narrowly to those specific rules of state law that authorize the use, distribution, possession or cultivation of medical marijuana. Accordingly, the Ninth Circuit’s interpretation of Congress’ prohibition is that it does not limit the U.S. government’s ability to enforce federal drug laws on federal land.
In addition, U.S. Attorney General Jeff Sessions recently rescinded Obama-era guidance that generally allowed states to implement their own marijuana laws without federal interference. The Justice Department issued a memo on marijuana enforcement in January 2018 which denounced the Obama administration’s guidance on marijuana laws as “undermining the rule of law”. The memo directed all U.S. Attorneys to use previously established prosecutorial principles to enforce federal drug laws, which, of course, reflected a tough on marijuana mentality.
The federal government’s decision to prosecute in Gilmore seems to reflect a revived interest in Washington to be tough on marijuana. The Ninth Circuit’s ruling shows that it is still important for California’s marijuana industry to closely follow federal law pertaining to cannabis, even though recreational use of cannabis is legal at the state level. Participants in California’s marijuana industry should seek advice from an attorney who specializes in both state and federal drug crimes to better understand the nuances of cannabis law.