Safe Streets Alliance et al. v. John Hickenlooper, et al. – Good News, Bad News

C1_8734_r_xA ruling issued on June 7th by the US Court of Appeals for the Tenth Circuit, in response to a series of legal challenges to Colorado’s adult cannabis use regulations, includes both good news and bad news.

The Good News

Most importantly for the legalization movement nationwide, the appeals court rejected the argument raised by the states of Nebraska and Oklahoma that Amendment 64 in Colorado, the voter initiative that legalized and regulated the adult use of marijuana, was preempted by the federal Controlled Substances Act. That argument, made by these neighboring states, if accepted by the court, would have voided Amendment 64.

It should be noted that this was not a definitive ruling on the federal preemption argument. Rather, it was a procedural ruling, finding that only the US Supreme Court has jurisdiction to hear disputes between the states. (The Supreme Court declined to consider a similar challenge in 2016.)

In fact, it was only after the Supreme Court had rejected their motion that the two states elected to raise these same issues with the 10th Circuit, by filing a motion to intervene in the Safe Streets case.

Also a big win, the Circuit Court rejected a similar attempt by a group of sheriffs and prosecutors from Colorado, Kansas, and Nebraska to use the US Controlled Substances Act and the Supremacy Clause of the US Constitution to enjoin the enforcement of Amendment 64. The court found that the Supremacy Clause “does not give rise to a private right of action.”

Hopefully this will give pause to other anti-marijuana zealots out there who might wish to use the federal preemption argument to undermine the various state legalization laws.

The Bad News

The bad news is that the 10th Circuit did reinstate a civil RICO complaint filed by private landowners in Colorado against a state-licensed indoor cultivation center, alleging it had caused a noxious odor that damaged their property value. The appellate court remanded the case back to the US District Court for further proceedings to allow the plaintiffs to attempt to prove their RICO claims.

While this is necessarily concerning to those in the state-legal cultivation industry, since the problems presented by the odors emanating from large grow operations is a theme which has been raised in several Colorado communities, it likely does not open the floodgates for every neighbor to bring a RICO suit against any cultivation center. Rather it likely will accelerate the adoption of the most effective technology by cultivation centers to minimize the odor of marijuana.

In the court’s own words, “We are not suggesting that every private citizen purportedly aggrieved by another person, a group, or an enterprise that is manufacturing, distributing, selling, or using marijuana may pursue a claim under RICO. Nor are we implying that every person tangentially injured in his business or property by such activities has a viable RICO claim. Rather, we hold only that the Reillys alleged sufficient facts to plausibly establish the requisite elements of their claims against the Marijuana Growers here.”

Jeff Sessions: Wrong on Opioids and Violence, Considers RICO Lawsuits

Attorney General Jeff Sessions Photo by Gage Skidmore

Attorney General Jeff Sessions
Photo by Gage Skidmore

Attorney General Jeff Sessions appeared with conservative talk radio host Hugh Hewitt to discuss a range of issues, including how the Trump administration intends to address marijuana law enforcement in states that are regulating its adult use.

During the interview, Hewitt repeatedly encourages Sessions to engage in federal prosecutions against state-licensed marijuana providers.

Hugh Hewitt (HH): Let’s talk about the rule of law. I have a piece coming out in the Washington Post about this on Sunday, Attorney General Sessions. One RICO prosecution against one marijuana retailer in one state that has so-called legalization ends this façade and this flaunting of the Supremacy Clause. Will you be bringing such a case?

Jeff Sessions (JS): We will — Um — Marijuana is against federal law, and that applies in states where they may have repealed their own anti-marijuana laws. So yes, we will enforce law in an appropriate way nationwide. It’s not possible for the federal government, of course, to take over everything the local police used to do in a state that’s legalized it. And I’m not in favor of legalization of marijuana. I think it’s a more dangerous drug than a lot of people realize. I don’t think we’re going to be a better community if marijuana is sold in every corner grocery store.

HH: No, but it would literally take one racketeering influence corrupt organization prosecution to take all the money from one retailer, and the message would be sent. I mean, if you want to send that message, you can send it. Do you think you’re going to send it?

JS: Well, we’ll be evaluating how we want to handle that. I think it’s a little more complicated than one RICO case, I’ve got to tell you. This, places like Colorado, it’s just sprung up a lot of different independent entities that are moving marijuana. And it’s also being moved interstate, not just in the home state.

HH: Yes.

JS: And neighbors are complaining, and filed lawsuits against them. So it’s a serious matter, in my opinion. And I just came from a big rally in New Hampshire yesterday, Hugh. This is, this opioid problem is just huge. There were 9,000 high school and junior high school students there. A mother I met who had lost a son three months before, a child, and she said there were 50 more mothers there who’d lost children speaking to those kids. We’ve had this huge opioid surge in America, 120 people a day die from drug overdose. And I do believe, and the President has issued an order to the Department of Justice to crack down on drugs and these international cartels that are moving this Fentanyl that’s so deadly into our country. And we’re going to step up that in a very vigorous way as I talk to United States Attorneys yesterday by conference call.

Predictably, Sessions’ responses — in particular his reaffirmation: “Marijuana is against federal law, and that applies in states where they may have repealed their own anti-marijuana laws. So yes, we will enforce law in an appropriate way nationwide.” — follows the path laid out by The Heritage Foundation’s Cully Stimson, who on February 27th, released an 11-point plan on how to “provide a targeted approach to [federal] marijuana enforcement.” The Heritage Foundation proposal specifically calls for the Department of Justice to use RICO laws to target state-licensed marijuana businesses:

  1. Prosecute those dealing in marijuana—which is illegal under federal law—using the Racketeer Influenced and Corrupt Organizations Act (RICO). Those who engage in a pattern of racketeering activity through a corporation or other enterprise are liable for three times the economic harm they cause. RICO gives federal courts the power to order racketeering enterprises and their co-conspirators to cease their unlawful operations.

The Attorney General also repeats two overt myths regarding cannabis, claiming that the enactment of marijuana regulatory schemes are somehow linked with violent crime and opioid abuse. As NORML recently points out in op-eds here and here, both of these claims are categorically untrue.

At the end of the day, when the Attorney General of the United States publicly contemplates the federal prosecution of those in the adult use marijuana industry, we should take these threats seriously.

That is why we need to continue to be proactive in pushing Congress to end federal marijuana prohibition and be ready to fight back at every level should Sessions follow through on his recent statements.

Click here to tell your member of Congress and urge them to support HR 1227, the Ending Marijuana Prohibition Act of 2017.

And click here to sign up as a NORML monthly supporter to make sure that we have the resources to support our chapters in the upcoming legal battles to protect the states that have legalized adult-use marijuana.

Thanks for all you do and stay vigilant.

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