Reminder: Marijuana Possession--Still a Federal Crime

With deep-seated consequences

[Sorry for the double post — posting error]

Two weeks ago the Government filed its reply in the Fried case.

For those who don’t know, Fried is a court challenge to the federal block on medical marijuana patients to buying guns. The main claim in suit is that Congress cannot constitutionally prohibit medical marijuana users from possessing guns. Beyond that, the plaintiffs claim a violation of the Rohrabacher-Farr Amendment, an annually re-upped appropriations riders that prohibits DOJ from using funds to prevent states from implementing medical marijuana laws.

As I’ve noted in an earlier post¹, federal drug law operates a bit like an octopus with tentacles all over the US Code.

The gun prohibitions at issue in Fried suit is a prime example of indirect enforcement. The fight illustrates precisely where state legalization/federal non-enforcement falls short. True, the federal government doesn’t often bust down doors for pot busts. This has been true for a while now.

Yet much injustice falls through the cracks. Many continue to carry water for the status quo. Those carrying this water are not industry. They are precisely those who can’t, such as folks with serious illnesses and vets. Whatever one thinks about gun rights, one should be able to accept that, on a moral level, those who use marijuana medically and according to state law should not be discriminated against and denied of rights enjoyed by everyone else.

Not surprisingly, in court, the federal government disagrees. It moved to dismiss the Fried suit arguing it fails as a matter of law. The first page of the Reply brief in support of the motion succinctly summarizes the Government’s main position:

The Second Amendment does not guarantee the right to possess firearms while engaged in criminal activity. Because the Supreme Court has defined the Second Amendment as protecting “law-abiding” citizens, New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111, 2122 (2022), Plaintiffs argue that the crime of marijuana possession is somehow not really a crime. Plaintiffs are wrong. The Rohrabacher-Farr Amendment temporarily bars the Department of Justice (“DOJ”) from spending money to prevent states from implementing medical marijuana laws, but it does not legalize medical marijuana or immunize users from prosecution.

The Reply goes on to say that those “who possess medical marijuana are committing crimes today for which they may be prosecuted in the future. Therefore, they are not ‘law-abiding.’” In other words, the Government still views medical marijuana users as criminals.

This is not surprising. At the federal level, it is true.

These types of conflicts are entirely predictable. We flagged a different issue months ago when BIA busted a nine-plant grow-op on tribal land. Many others exist. They arise out of the fact that state and federal law diverges and non-enforcement is like duct tape on this leaky pipe—a temporary fix that does nothing of the systemic improvements needed to fix this mess. Worse, it breeds complacency.

Indeed, Shane and I have been running around the pot pulpit with a donation plate for 1+ year asking the industry—companies and cannabis-oriented non-profits—to do something about these deeper issues. Something real. Fried is a challenge to a tentacle. So is the theory of this suit sounding in the commerce clause, but motivated by 280E. We have asked the industry to hit closer to the Controlled Substances Act core. For example, a challenge the federal prohibition on simple possession based on the theory that the simple possession ban exceeds federal authority to regulate “interstate commerce.” Not just marijuana. All drugs.²

Nobody is interested in this or any other big move. In fact, the industry might be profoundly disinterested in such a challenge. Many enjoy the status quo and the barriers to entry it creates.

Initially, I found this to be surprising. These types of lawsuits are not that expensive. It would not require half a million in fees and ancillaries. If you know the lay of the land, know what you are doing, and willing to work efficiently and low-bono, tens of thousands at the trial court level—$100-200k at most. Same for an appeal. One could take a stab at simple possession for around the costs to “Amp Your Brand” at MJBiz or throw rockstar parties in Vegas at the conference.

Cool party, MJBroz

Think about it. 1,400 exhibitors at MJBiz. If each gave $100 there’d be enough.

Forget the lawsuit. If the industry/space wanted to make real social change—and perhaps many in it say they do but don’t—it could band together and impose a 15% tax on the admission/exhibitor fee for MJBiz and every lavish event like it and fund an equity/restorative justice program, like the NAACP LDF or whatnot, dedicated to strategic litigation. This would probably be more effective than spawning new trade groups.

You do not see anything like this, however. As to our project, a variety of factors could be at play. For example, maybe Shane and I are bad pitchmen. But in my opinion, one factor predominates over all: at the end of the day, the pot industry cares more about profits than damned customers. They don’t want change unless it directly improves the bottom line. Even Fried has a politics-stunt-angle to it: Fried was up against Charlie Crist in the Democratic primary for Governor. If you want to hear me rant more, I invite you to listen to this podcast I did with Montel Williams, whose advocacy I respect deeply.

Here is my general view of the industry. Great entrepreneurs and innovators. Creates lots of jobs. Many, maybe most, mean well. Some don’t. I also wish the industry generally well. But if you cannot draw a short, straight line between a project and an immediate increase in profits or some social justice outcome that is significant (as opposed to chipping away); the industry, funders, and non-profits just aren’t interested.

No social justice/civil rights movement, to my knowledge, has ever succeeded with this attitude. Nor has any meaningful social justice movement or organization, to my knowledge, succeeded without strategic use of the courts to some degree to get change. Not gay marriage. Not gender equality. Not racial equality. Not gun rights. Not religious liberty rights.

To me, to the extent it is true, this attitude is short sighted and misguided. So for the remainder of this essay, let me focus on three questions from a social justice standpoint: (1) why this matters, (2) why should you care, and (3) whether this would be a good return on time/money.

First, Fried is evidence that this matters. Although the annual Rohrabacher-Farr amendments deprive DOJ funding to prosecute, clear injustices remain. A cornucopia of assorted drug laws prop up the War on Drugs all over the federal books. Moreover, no urgency exists to fix the situation due to non-enforcement. Non-enforcement obscures consequences allowing continued federal prohibition. Those in power, including judges and those in government, do not think that the situation is dire. Nor do the people. And they are right on some level. Few if any patients that rely on medical marijuana according to state law being denied access to marijuana.

But Fried shows this only superficially rings true. Access is denied in several other indirect ways. Nobody should have to choose between housing or constitutional rights, on the one hand, and using medical marijuana according to state laws. This doesn’t unravel itself. It will take work.

Second, not all challenges, such as eliminating simple possession, will correct all injustices overnight. Indeed, some may not fix much injustice at all. Simple possession is barely enforced, after all.

But this misses the point. Imagine you came to the conclusion that your life was a mess because:

• Your diet sucks.

• You do not exercise.

• You work too much.

• You do not sleep well.

• You have no friends.

If these were your problems, the expectation that a pill could right the ship would be mistaken. Sadly, this metaphor represents both how I view Rohrabacher-Farr complacency and the expectation that any one lawsuit could “fix” deep seated problems. Lawsuits work in conjunction and synergistically with other strategies to bring change. They aren’t single fire solutions.

Third, the merits. Is there any chance a court makes a significant ruling for cannabis and against the drug war? Truthfully, I don’t know. The judiciary is getting younger, but it remains difficult to win these cases. I’ve lost a few of them where I believed we had the much better argument. You can be 100% right on the law, draw a bad panel of judges—and lose—especially with drug issues.

But perhaps, this also obscures the real point. Even if the percentage chances of winning in court were low—say 5%—that is a 10% chance at a humongous payoff. A fat-tail. A smart investor takes a 5% bet at $1,000,0000 over a 50% chance at $1,000 bucks every day of the week. Strange things can happen in court. Sometimes judges do reach transformative rulings against the establishment. For example, in this recent case, the Fifth Circuit held that SEC administrative enforcement proceedings unconstitutionally deprived the litigant of Seventh Amendment jury trial rights. That’s a big ruling.

Moreover, the return on investment on lawsuits often go beyond the courthouse. It is cheap PR that can put pressure on an Administration that promised to release individuals in prison but hasn’t. And, as seen in Fried, it also puts the government in a bind, forcing it to defend uncomfortable positions.

1. I know, I know. I haven’t been posting as much. If we’re not keeping up with your appetite, don’t forget some of the classics!

2. For the lawyers among us: This would not be relitigating Gonzales v. Raich for a variety of reasons. Raich was an as-applied Commerce Clause challenge similar to the 280E suit described here. Raich involved both the distribution statute and tangentially, simple possession. As a facial attack, the proposed challenge is more like Lopez.