Criminal Justice

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

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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.

NEXT: Promises Worth Breaking

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  1. In other words, forget what Obama repeatedly promised on the campaign trail

    You’re not even a real plumber.

  2. I would taunt the Obamatrons yet again over this continuing failure, but even my cruelty has its limits. Or maybe I’m just tired. It’s probably the latter.

  3. Fucking obnoxious waste of time and resources. How many fucking generations of “drug warriors” have to die before this nonsense ceases to exist? You would think with all of the amateurish incompetence displayed by the Obama administration that it would at least make some progress on some social issues.

    1. That’s right, I agree with you.

    2. You would think with all of the amateurish incompetence displayed by the Obama administration that it would at least make some progress on some social issues.

      Why would anyone think that?

  4. “require caregivers to offer additional services to their patients besides providing them with pot”

    WTF?

    “Here’s your pot, *and* your joke of the day. Now let me wipe your nose so you can get out of here without us being busted.”

  5. I think it is funny. The dopers think they can do whatever they want when ever they want. There is the other side of the story and not all people agree with legalization of marijuana. Remember it was struck down in Colorado before. It will be struck down again.

    1. The dopers think they can do whatever they want when ever they want.

      Citation needed.

    2. “The dopers think they can do whatever they want when ever they want.”

      Except the initiation of force, fraud, or theft against others, yes, libertarianism is entirely based off of the non-aggression axiom.

    3. “”The dopers think they can do whatever they want when ever they want.””

      Are you calling the Bush administration dopers?

      1. U so called conservative republican’s that feel they have the right to tell people what to do based on “morality”. Let me tell you that we are doomed to live in a fascist theocracy if we continue this way. Our prison system is the largest and highest per capita in the world. Also the “dopers” as u put it are seeking help from sickness. Who are you to say they should take heroin “morphine” instead of pot? The way i see it the person trying to deprive liberty should be in jail.

    4. The “dopers” as you put it *can* do whatever they want when ever they want, RIGHT NOW, No individual who desires to obtain marijuana has any difficulty whatsoever in obtaining it. 30+ years of “war” on this drug has netted *zero* results. People learned the lesson of how impossible it is to prohibit a victimless crime during alcohol prohibition, the more violently you threaten personal liberty (arrest by gunpoint) the more violence you have regarding that substance. Since the dying was happeing in Chicago and Philly, things got changed quickly, since the marijuana wars are killing people in Juarez, El Paso, Tijuana, etc change is coming slower. You’ll never in 1000 years be able to enforce marijuana prohibition, not only is it simply impossible it actually CAUSES more societal problems than it alleviates.

    5. Haha, you lose the thread Bubba.

    6. ” the dopers” ?? Lets talk about…..The Drinkers… When was the last time you read about someone soley under the influence of marijuana commiting a violent crime. Seroiusly, take a few minutes and consider general social behavior differences between Drinkers and Dopers.
      gimme a break

  6. Jacob thank you for defending liberty,people do not understand how important this Colorado/DEA situation is.
    How Obama and Holder handle this issue
    will be a telltale for the next couple of years.
    The DEA are trying to buy time till a republican gets into office,salvating pavlov dog just like in 2005 when they were watching CSPAN to find out what the verdict was on Gonzales vs Raich.
    REPEALCSA.COM

  7. The DEA are trying to buy time till a republican gets into office

    Yeah because they call a truce in the WoDs every time a Democrat is in office.Well except for every Democrat since Woodrow Wilson (when drug prohibition started), but hey weed was still legal until FDR signed the Marihuana Tax Act. I could go on but it doesn’t do a damn bit of good because any doper who thinks the Democrats are “better” on drug policy is fucking proof that shit rots your brain.

  8. I’m not letting the fed off the hook but I’m putting some blame on Colorado. Here’s why,

    ” 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.”

    Being responsible for someone’s well-being means more than being the pot man.

    So how does that work? You need an in-home nurse that also grows pot. Could your over 18 grandson taking care of you grow pot on your behalf? Are those the scenarios the Colorado legislature had in mind?

  9. Can you be in the nursing home business and the pot business for your clients? Could you have a gardner on staff to grow, or would it have to be one or more of the nurses handling the herb?

    I think the whole “primary caregiver” concept is setup to fail. Therefore, making you fodder for the feds.

    1. I wouldn’t be entirely surprised if that was their intention, Vic. For politicians, they see the Medical MJ issue as something of a difficult balancing act; on the one hand, more and more people (i.e. voters) are for it; yet at the same time, they are utterly terrified of being able to be accused of being “soft on drugs”. So these wishy washy laws get developed, because they’re trying to straddle that line.

      1. “”So these wishy washy laws get developed, because they’re trying to straddle that line.””

        I’m curious as to what happens next. Will the state ingore the problems with the law, blowing it off by calling the law a win? Or will they try to modify the law so their citizens won’t be fed fodder?

        If I were betting man, I’d go with the first. Too many politicians are elected on a pro-law enforcement platform, and pro-drug, pro-LEO doesn’t really go together.

        1. Totally agree with you; it’ll be the former, unless the politicians are annoyed enough at the feds for encroaching on “their” territory.

          Their constituents’ welfare vis a vis the DEA is, I doubt, of much concern to them.

  10. How to NOT go to federal prison:
    1. NEVER go over 100 plants
    2. NEVER go over the number of plants you are constitutionally allowed.
    3. NEVER go on the news bragging about your grow.
    4. NEVER consent to a search of your person or home.

    1. 2. NEVER go over the number of plants you are constitutionally allowed.

      Harmless? You decide

      *standard libertarian disclaimer*

  11. While I would agree that it is risky to grow more than 6-plants per patient in CO, and it is also risky to grow more than 100 plants in any situation, according to Section 14-(4)(b) of Colorado’s Medical Marijuna Law (Amendment 20 of the Colorado Constitution):

    “(b): For quantities of marijuana in excess of these amounts [6 plants per patient], a patient or his or her primary care-giver may raise as an affirmative defense to charges of violation of state law that such greater amounts were medically necessary to address the patient’s debilitating medical condition.”[END]

    And how did the DEA know he was over his limits in the first place? Raid ’em and then count the plants? What was Sweetin’s legal justification for the raid? Does he have superpowers that enable him to smell the exact number of plants?

    Considering Irv Rosenfeld, the oldest surving Federal Medical Cannabis Patient, requires 11 ounces of cannabis every 25-days to treat his rare bone disorder, it is highly likely the number of plants this guy was growing could indeed be “medically necessary” and justified by a physician with medical cannabis expertise.

  12. I wish joe was here so I could fuck that asshole up the ass without any KY Jelly.

  13. as long as you’re better dressed than the guys that make and enforce the laws, drugs are legal.

  14. Hey siv Obama is the president besides JC to deal with issue in a positive way,what do you think gonna happen when a mitt romney type takes office ,he is going to scapegoat every pot head he can,asset forfeiture will be up 10000%…….you better wake up !

  15. it is BULLSHIT that caregivers and dispensaries aren’t allowed to make a profit for themselves. its insane. its like how you can fuck for free but when money changes hands it is somehow different.

  16. Oh, let’s forget it!

  17. Oh, let’s forget it!

  18. Oh, let’s forget it!

  19. Oh, let’s forget that, it must be a joking.

  20. Good God, Jesus Christ Almighty, it’s a friggin weed!!! I have to believe that society itself needs drama in just the same way some individuals do, so crisis are contrived and instigated so that people can feel that their lives are about something. Stop the world. I want to get off.

  21. ,i>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.

    What’s their position regarding the profitability of Pfizer and Lilly?

    1. Oops- tag fail.

  22. Unfortunately, for Mr Chris B. (the subject of the raid), he willingly let the DEA into his house. He also made statements afterwards that were not to his advantage.

    Myself being a medicinal cannabis advocate via disability rights, I feel I can say…This guy was a fool, and a tool. He already had AT least 1 felony conviction for cannabis growing. He refused offers to conceal his identity from the news stations that did this report on him. This alone allowed the DEA to quickly find him. And he grew over 99 plants, which kicks in Federal mandatory minimum sentencing guidelines.

    1. What are “disability rights?”

      1. Nick wrote:
        What are “disability rights?”

        Well in the case of medicanal cannbis, it is issues like making sure the dispensaries have “off street, or extra wide parking spaces for severely handicapped people, or simply having the disable community have their voices heard in any issue that is going to affect them. And obviously ADA compliance where building anything new is happening.

        1. Careful man, you’re taking some classic libertarian bait. You won’t get very far in these parts talking about regulatory compliance. I think Nick asked that question sarcastically.

          Of course, for what its worth, I’m not sure that the ADA is on many people’s government regulations hit list. Seems like sort of a faux pas to launch off on a tirade against wheelchair ramps, after all.

          1. Rhayader wrote:
            Careful man, you’re taking some classic libertarian bait.

            What do you say Nick??? Care to go toe-to-toe: libertarian vs libertarian socialist?

    2. You can call him a fool if you want, but it’s pretty clear to me that he was trying to rock the boat. He wasn’t being conspicuous out of naivete, he was being intentionally in-your-face to draw controversy. We’re here, we got the dank, get used to it. That’s the sort of active civil disobedience that the marijuana reform movement needs more of.

      1. I do not think he was trying to “rock the boat”, he was more likely trying to brag.

        And from reading the Federal filing on this case (google it, it is out there), you can see that he did not have his story together. For instance he said to the news that he grew the cannabis for the 12+ patients he was a caregiver for, but he told the DEA that no, actually he just sold the cannabis to a dispensary. Furthermore, and most destructive to your argument is that the guy has multiple previous conviction for growing cannabis. With these convictions he will not walk, whereas if he had none, he would walk. So, if he did this to “draw controversy”, instead of just being REALLY high and not thinking, (which I believe was the case), he is indeed a BIGGER fool than I thought. Only a fool would taunt a system that can easily take away the rest of his productive life.

        In my opinion, the medical cannabis movement does NOT need test cases like this. This guys life is totally screwed for a long time.

        1. I’m not sure how much pot you’ve smoked, but last I checked it was much more likely to inspire paranoia than braggadocio. So I’m just not clear why being “really high” would make someone want to put his face all over TV and brag about how much money he makes growing and selling pot. Besides, I suspect that the decision to film and air this story — and all of the decisions about its production — took place over a length of time much longer than a nice herbal buzz. People might wander into a store they have no interest in while high; wandering into a TV news story while high is something different.

          And hey, you may be right about the medical movement specifically; my concerns rest more with the larger marijuana reform movement, including recreational use. I think generally it’s a good thing for people to stand up proudly for their cannabis-related lifestyles and jobs. It helps raise awareness that the cannabis community is made up of just regular folks.

          1. The bragging idea is from the fact that he was doing this (growing) for years. So because he was doing it for so long he undoubtedly had a lot of “under-ground” connections. Perhaps he thought this would impress them? I would think the opposite.

            I just really can not get away from the “he was REALLY high” argument. Having access to 30-50 pounds every 60 days meant he very likely smoked many ounces per week.

            1. Again though: when was the last time “being REALLY high” made you seek out attention? It does exactly the opposite — I can’t think of a better way to make me not want to brag about my grow-op on TV than smoking some good dank. This isn’t Otto on The Simpsons, this is a real guy. He didn’t just get high and wind up on the news.

  23. 10th Amend. is part of federal supremacy, and as someone already stated, Colorado’s Amend. 20 allows patients to grow more than the 6 plants, if it is “medically necessary”…

    Given one of the remaining Federal Medical Cannabis patients uses 11-ounces every 25-days (even if it is lower end schwaa), it should be no problem justifying this guy needed the number he had, if things were “fair.”

    But if previous federal cases are indicative, they won’t let him explain that he was growing for medical reasons…

    Obama needs to just reschedule it and then look at the larger legalization/regulating picture. And of course we should be able to grow our own, just like the founders of this great country.

  24. Either way, these dope growers may want to locate themselves outside of a covenant controlled community.
    Whether or not it is permitted by state laws, it may not be acceptable land use in HR.

  25. Wasn’t the first American Civil War fought over just such issues as state’s rights and prohibition? I hope it doesn’t come down to it but I’m seeing a very ugly scene developing here!

  26. A Colorado pot grower who tried unsuccessfully to use state … David Gaouette argues that no matter what Coloradans voted for, no grow operation gets a federal pass. “Colorado’s state drug law does not, and cannot
    http://destinationsoftwareinc.com

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  28. learn some principles of cost benefit analysis, as well as read and critique some actual studeis in health economics using cost benefit principles (mental health, …. Gerd Gigerenzer Calculated Risks How to Know When Numbers Deceive you … Rationing is a dirtyword in health care, but it is not necessarily a bad
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  29. looks forward to seeing more Americans harness the power of broadband for their civic, economic, and educational success

  30. You can call him a fool if you want, but it’s pretty clear to me that he was trying to rock the boat. He wasn’t being conspicuous out of naivete, he was being intentionally in-your-face to draw controversy. We’re here, we got the dank, get used to it. That’s the sort of active civil disobedience that the marijuana reform movement needs more of.

  31. Either way, these dope growers may want to locate themselves outside of a covenant controlled community.
    Whether or not it is permitted by state laws, it may not be acceptable land use in HR.

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