Do Federal Threats Against Medical Marijuana Suppliers in Colorado Break Holder's Promise?


Yesterday John Walsh, the U.S. attorney in Colorado, sent letters to the operators and landlords of 23 medical marijuana dispensaries, threatening them with forfeiture and prosecution if the businesses are not shut down within 45 days. Walsh said all 23 are within 1,000 feet of a school, which violates state law and triggers enhanced penalties under federal law. But in his letter to dispensaries, he mentioned only the violation of federal law:

Federal law prohibits the manufacture, distribution, and possession of marijuana…The dispensary is operating in violation of federal law, and the Department of Justice has the authority to enforce the federal law where appropriate even when such activities may be permitted under state law.

Walsh's letter to dispensary landlords includes the same language, except that the possibly crucial phrase "where appropriate" is omitted. If Walsh believes prosecution of medical marijuana suppliers is "appropriate" only when they are violating state law, his position is consistent with repeated assurances from his boss, Attorney General Eric Holder, that the Justice Department will not focus its resources on dispensaries that comply with state law. According to The Denver Post, Rep. Jared Polis (D-Colo.), who elicited a couple of those assurances from Holder during congressional hearings,  is not alarmed by Walsh's letters:

Congressman Jared Polis, who has defended Colorado's medical-marijuana laws in Washington, said a 1,000-foot buffer from schools makes sense and did not express outrage at the limited crackdown. He said dispensaries should comply with the 1,000-foot limit in state law.

"The Justice Department has repeatedly made clear that dispensaries that are in compliance with state law are not an enforcement priority," Polis, D-Boulder, said in a statement. "Colorado's tough system of medical marijuana regulation is the best way to keep drugs out of the hands of minors."

Like California's U.S. attorneys, Walsh seems deliberately ambiguous on the question of whether he will respect state law. But unlike California, where dispensaries operate in a legal gray area, Colorado recently adopted regulations (based on legislation passed in 2010) that explicitly authorize them and set conditions for state licenses, which the Colorado Department of Revenue's Medical Marijuana Enforcement Division began issuing last October. Local governments are authorized to impose additional requirements. In Colorado Springs, for example, applications for local licenses were due at the end of September, and city officials say the process may take up to five months. Denver—which was issuing its own dispensary licenses, based on the medical marijuana law approved by Colorado voters in 2000, before the state enacted its regulations—is in the process of "align[ing]" its procedures with the state's rules. Here is the guidance the city gives to current licensees:

If the process of applying for the new medical marijuana center license takes longer than six months, the licensee can renew again. Existing applicants who applied to the state of Colorado for a Medical Marijuana Optional Cultivation Premises [license] or a Medical Marijuana Infused Products Manufacturer [license] as of August 1, 2010 can continue to remain in business as long as the applicant follows state and local laws.

The 1,000-foot rule is one requirement of those laws, so if Walsh sticks to targeting dispensaries that do not comply with it, he will not be breaking Holder's promise.

For more on the Obama administration's shifty policy on medical marijuana, see my story in the October issue of Reason.