Judge: Feds Can’t Bust State-Legal Cannabis Operations

Federal marijuana prohibition still stands, but enforcing the federal ban in states where cannabis is legal just became a lot harder. If not impossible — just as Congress intended. 

Giving legal support for an earlier move by Congress, a federal judge ruled Monday that the federal Justice Department is forbidden from prosecuting or otherwise interfering with cannabis operations that are in compliance with state law.

In a blistering smackdown to federal drug cops that could soon become a landmark ruling, U.S. District Court Judge Charles R. Breyer affirmed that recent actions in Congress prohibit the DEA and U.S. Attorneys from taking action against California’s “heavily regulated medical marijuana dispensaries.”

The ruling paves the way for a Marin County-based medical cannabis dispensary to reopen. It may also pave the way for the other dispensaries shuttered during a federal crackdown in 2011-2012 to reopen.

It could also mean a new level of fever pitch for the state’s multi-billion dollar cannabis industry. After all, if the feds can no longer stop it, who can? 

U.S. Judge Charles C. Breyer

Earlier this year, Congress passed an amendment to the Justice Department’s budget that prohibited the feds from “spending funds” to interfere with state medical marijuana law. While the Controlled Substance Act is untouched and cannabis is still a Schedule I drug, the intent, in the words of bill co-sponsor U.S. Rep. Sam Farr, was to assure the law-abiding California cannabis industry that “the Feds just can’t come in and bust you.”

Attorneys for marijuana provider Lynette Shaw, who ran a dispensary in Fairfax called the Marin Alliance for Medical Marijuana from 1997 until a federal forfeiture action closed it in 2012, argued that the budget amendment — which is in effect only until next year unless renewed by Congress — means that an earlier permanent injunction ordering it closed and barring Shaw (and several other figures in Bay Area weed lore) from working in the industry no longer stand.

Federal marijuana prohibition, including the Controlled Substances Act, still stands. But, as Breyer ruled, it is now very difficult — if not impossible — for the federal Justice Department to do anything about the state’s cannabis growers, sellers, and distributors, as long as state law is being followed.

“The plain reading of [Congress’s amendment] forbids the Department of Justice from enforcing this injunction against MAMM to the extend that MAMM operates in compliance with California law,” Breyer wrote.

“To the Court’s recollection,” Breyer added, “the Government has yet to allege or even suggest that MAMM was at any time operating in violation of state law.”

Breyer also had harsh words for Acting U.S. Attorney Brian J. Strong. Strong’s attorneys argued that federal raids could continue, because raiding did not interfere with California implementing a law.

That argument “so tortures the plain meaning of the statute that it must be quoted to ensure credible articulation,” Breyer wrote. 

“To ‘implement,’ of course, means to ‘carry out, accomplish, to give practical effect to and ensure of actual fulfillment by concrete measures,'” he added. “It defies language and logic for the Government to argue that it does not ‘prevent’ California from ‘implementing’ its medical marijuana laws by shutting down these same heavily regulated dispensaries.”

This ruling is a “tipping point” in the country’s struggle over the cannabis plant, Shaw attorney Greg Anton told NBC Bay Area. “The law is clear there will be no funds expended for interfering with California state medical marijuana laws,” he said.

Shaw’s dispensary had a license from the town of Fairfax, as well as staunch support from the town’s mayor and chief of police, who was responsible for creating MAMM’s unique permit (sometimes, the rule of law is a good thing for cannabis).

MAMM was possibly one of the first dispensaries in the country to receive a local permit. It was the only dispensary serving Marin, which historically has high rates of breast cancer, town Mayor Larry Bragmann wrote to former U.S. Attorney Melinda Haag in 2014.

The business will remain closed for now. Shaw’s old landlord is barred from renting to her, and Shaw herself at one point owed over $3 million in back taxes to the IRS. 

That doesn’t appear to matter now to Shaw, 60, a former Libertarian candidate for governor.

The ruling means “[w]e are allowed to reopen the new MAMM,” Shaw posted to her GoFundMe page last night. “Am seeking investors. I am now Fed proof ; )”

And so, by extension, is the entire California cannabis industry, which would appear poised to blow up even further at the moment.

Actions taken by the state Legislature earlier this year have specifically legalized for-profit commercial cannabis activity in California — so long as the operation follows local law. 

Shaw and the industry are only fed-proof as long as Congress keeps renewing the budget amendment or makes it permanent. And federal forfeiture actions are still pending against two other Bay Area dispensaries, Harborside Health Center and Berkeley Patients Group.

But with momentum like this, the next step could be amending the CSA entirely. 

“We won the war,” Shaw told Smell the Truth’s David Downs. “And I’m the first POW to be released.”