Was That Colorado Pot Grower Complying With State Law? Does It Matter?

Yesterday Radley Balko noted that on Friday the Drug Enforcement Administration busted Chris Bartkowicz, a medical marijuana grower in Highlands Ranch, Colorado, despite the Justice Department's announcement that it would stop prosecuting such individuals if they are complying with state law. Did Bartkowicz's operation comply with state law? The short answer is "probably," at least as the law is currently understood. But that is not good enough to qualify him for the Justice Department's newfound tolerance, which applies only to "individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana."

Colorado's law, like California's, allows patients or their "primary caregivers" to grow and possess marijuana for medical use. The general limit is two ounces of pot and six plants per patient at any given time. The law defines a "primary caregiver" as "a person, other than the patient and the patient's physician, who is eighteen years of age or older and has significant responsibility for managing the well-being of a patient who has a debilitating medical condition." Prior to his arrest, the Denver Post reports, Bartkowicz told a local TV station "a number of medical-marijuana patients" had designated him as their primary caregiver, a status that would allow him to grow six plants per patient. In 2008 the California Supreme Court rejected this sort of argument, once favored by marijuana dispensaries in that state; it ruled that a primary caregiver's involvement in a patient's life has to go beyond supplying him with pot. But it appears the Colorado courts have not followed suit. Westword reports that the Colorado Board of Health is considering new regulations that, among other things, would  "require caregivers to offer additional services to their patients besides providing them with pot" and impose "a five-patient-per-caregiver limit." In other words, those restrictions do not currently apply, so Bartkowicz's defense could very well be successful in state court.

But that doesn't mean Bartkowicz definitely would prevail, which is what the Justice Department's guidelines apparently require. In fact, the memo (PDF) laying out the new policy suggests that the Justice Department reserves the authority to interpret state law. So even if Colorado's courts say Bartkowicz's operation was legitimate, the feds could disagree, which is rather inconsistent with President Obama's professed desire to respect state autonomy in this area. For example, the memo says "prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority." Among the factors that could expose a medical marijuana supplier to federal prosecution, it lists "financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law" (emphasis added). Colorado's law says nothing one way or  the other about how much compensation a caregiver can receive from a patient. So on what basis does the DEA decide that Bartkowicz's "financial gains" (which he stupidly bragged about on TV) are illicit, let alone that the amount of cash he has is "excessive"? The Justice Department may think it's outrageous for medical marijuana growers to turn a profit, or even to get reimbursed for their expenses, but state law says no such thing.

The really galling aspect of this case is that Jeffrey Sweetin, who runs the DEA's Denver office, does not even pretend to be interpreting state law, as the Justice Department memo ostensibly requires. "It's still a violation of federal law," he says. "It's not medicine. We're still going to continue to investigate and arrest people." In other words, forget what Obama repeatedly promised on the campaign trail, what Attorney General Eric Holder declared last March, and what the Justice Department memo put in writing; we are going to carry on as usual. Given Obama's choice to head the DEA, it's not surprising that Sweetin feels confident in saying that the president's promises mean nothing.

In October I explained why Obama's new medical marijuana policy might not make much difference in practice.