John Walsh, the U.S. attorney for Colorado, finally has clarified which medical marijuana providers in that state should worry about trouble with the feds: all of them. Two months ago Walsh told 23 dispensaries located within 1,000 feet of a school they had to close or face raids, forfeiture, and prosecution. At least some of those dispensaries were complying with Colorado law, which has a general rule against operating within 1,000 feet of a school but allows local governments to modify that restiction and grandfathers dispensaries that existed before the state started issuing licenses. So it was already clear that Walsh, contrary to Attorney General Holder's repeated assurances on this point, was not prepared to let state law determine whether a dispensary can operate without federal harassment. But when it turned out that one of those 23 dispensaries was near a school building that was not used for teaching, it was taken off the list. That decision fanned the hope that Walsh would stick to enforcing his 1,000-foot rule. Last week, A.P. reports, Walsh stomped on that hope (emphasis added):
U.S. Attorney John Walsh sent a letter Friday to a lawyer representing medical marijuana dispensaries, saying safe harbor doesn't exist for such shops because marijuana remains illegal under federal law….
Walsh said in the new letter that it is at his office's discretion to take enforcement action against any and all medicinal marijuana dispensaries….
[Walsh said] advising clients that there is a safe harbor is "incorrect and untruthful, and would mislead them, factually and legally."
Jeff Dorschner, a spokesman for the U.S. attorney's office, said there are other factors that can close down shops like unlawful use or possession of a firearm and having amounts of marijuana not in compliant with state and local law….
Dorschner said it's not possible to answer whether a shop in compliance with state rules and regulations and not located near a school would still face any trouble.
It's true, of course, that marijuana is prohibited for all uses by the federal Controlled Substances Act and that, under Gonzales v. Raich, U.S. attorneys have the authority to prosecute people who supply marijuana to patients, even in states that, like Colorado, explicitly allow such distribution. What Holder (and his boss) promised was that federal prosecutors would nevertheless use their discretion to avoid a conflict between the federal ban and state policy. One searches Walsh's position in vain for any hint of such forbearance.