Medical marijuana: Does U.S. Attorney John Walsh's letter signal end of federal MMJ truce?

HB 1043, a bill sponsored by Representative Tom Massey and Senator Pat Steadman to clean up last year's medical marijuana regulations, seemed to be quietly moving toward passage -- but no more. A letter from U.S. Attorney John Walsh attacking aspects of the legislation call into question whether the federal government will continue its hands-off policy in regard to MMJ businesses following local law in states that have legalized them.

A 2009 memo from Deputy Attorney General David Ogden directed U.S. Attorneys not to target medical marijuana businesses in areas where they're legal, as long as they're following state law -- guidance that was blasted at the time by Colorado Attorney General John Suthers, an outspoken MMJ opponent.

But in 2010, Highlands Ranch medical marijuana grower Chris Bartkowicz was arrested and charged federally -- and after a judge ruled he couldn't use Colorado MMJ rules as a defense, he was sentenced to five years in prison.

More recently, MMJ advocates were alarmed by a letter from California-based U.S. Attorney Melinda Haag promising federal crackdowns on dispensaries regardless of local laws.

Last month, Jeff Dorschner, Walsh's spokesman, made it clear that Haag's letter didn't supersede the Ogden memo. But now, the situation is considerably more confusing.

According to Mike Saccone, spokesman for the Colorado Attorney General's Office, Suthers asked Walsh for an opinion about 1043. Walsh responded with a letter reiterating that marijuana remains a Schedule I controlled substance under federal law. Then, after referencing both the Ogden memo and the prosecution of Bartkowicz, he attacked two separate provisions of the bill.

John Suthers.
John Suthers.

The first, which was stripped out by the Colorado House and is not currently in the legislation, would "license a marijuana investment fund or funds under which both Colorado and out-of-state investors would invest in commercial marijuana operations." Walsh wrote that "the Department would consider civil and criminal legal remedies regarding those who invest in the production of marijuana... even if the investment is made in a state-licensed fund of the kind proposed."

Walsh also lashed out against a still-viable provision for allowing infused-product facilities containing up to 500 plants, "with the possibility of licensing even larger facilities, with no stated number limit, with a state-granted waiver based upon broad factors such as 'business need.'" Again, he emphasized that the feds would consider civil and criminal actions against those who set up such facilities.


Chris Bartkowicz.
Chris Bartkowicz.

Yesterday, as first reported in the Denver Post, Suthers assembled a package of material, including the Walsh and Haag letters, and provided it to members of the Colorado General Assembly. He also wrote an intro note of his own. As Suthers wrote, "These letters indicate that while the Department of Justice will not focus its limited resources on seriously ill individuals who use marijuana as part of a medically recommended treatment regimen in compliance with state law, it does maintain its full authority to vigorously enforce federal law against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law."

By the way, these italics are in the original letter. And as a zinger, Suthers added that "U.S. Attorneys do not consider state employees who conduct activities under state medical marijuana laws to be immune from liability under federal law," raising the specter that Department of Revenue officials, or possibly even legislators, could be charged with marijuana crimes.

To put it mildly, these developments raise enormous question marks in regard to the interaction of state and federal marijuana laws. And although Walsh's objection to the investment fund isn't all that surprising, since banking laws are under federal control, his gripe about the lack of plant limits for infused-product manufacturers seems like an attempt to curb cultivation, which state law has already approved in a variety of different ways.

Here's the Suthers package of material presented to the General Assembly. The Walsh letter is the second document:

Colorado Attorney General's Office package for HB 1043

More from our Marijuana archive: "John Suthers, Colorado Attorney General, thinks medical marijuana dispensaries suck -- and here's why."

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