Nevertheless, his arrest raises a series of legal questions regarding the conflict between Colorado's Amendment 20, which legalized medical marijuana in the state, and federal law, which continues to treat marijuana as illegal whether it's being used for medical reasons or not.
Although Bartkowicz's attorney, Joseph Saint-Veltri, has not discussed the case publicly, he spoke with Westword in February about the inherent conflict between state and federal law. Now, Westword has obtained copies of his formal legal argument, as well as that of the federal government -- and they're both fascinating.
The feds' opening brief, filed February 17, can be read in its entirety by clicking here. However, the basic contentions, which hold that federal law trumps the state's amendment and dismiss a memo by Deputy Attorney General David Ogden as irrelevant when applied to Bartkowicz, are neatly encapsulated in the filing's conclusion, which reads:
Possession or distribution of any quantity of marijuana, for any purpose, remains illegal as a matter of federal law throughout the State of Colorado. The United Stated Department of Justice, through the United States Attorney's Office, has the discretion to prosecute individual cases of possession and distribution without regard to state law. The prosecutorial priorities of the Department do not create any substantive rights or defenses with respect to federal criminal prosecution of marijuana offenses. Certainly, where an individual is not a legitimate "patient" under state law, or where any individual possesses more than six plants, or more than three mature, flowering plants that are producing a usable form of marijuana, the Ogden Memorandum has no applicability. "Primary caregivers" also remain subject to federal prosecution, but particularly where the individual's role is limited to providing marijuana to patients. Without exception, distribution of marijuana, as well as any quantity possessed within plain view, remains a crime under both state and federal law. Further changes and clarification of Colorado law, of course, may affect the implementation of the Department of Justice's enforcement policy.
The Saint-Veltri answer brief, dated March 28, attempts to pick apart this argument point by point: To judge its success, click here to read the entire document. The filing is written with uncommon eloquence, as is clear from its conclusion:
The Government (Respondent) has boldly proclaimed that, as to medical marijuana, federal law trumps state law. The proclamation inherently embraces the conceit that the federal government is dominant -- the citizens of the State of Colorado are servile as to medical marijuana. Fortunately, the arguments made in this Answer Brief sufficient safeguard the choice of the citizens of Colorado to allow medical use of marijuana.
The controversy between the Federal government and the State of Colorado depicted in the briefs of the parties was never envisioned by those who framed our national Constitution. The American most responsible for the U.S. Constitution described the sovereignty of the states as follows:
"The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite... The powers reserved to the several States will extend to all those objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." James Madison, The Federalist No. 45.
James Madison provided an eloquent elenchus to the Government's proclamation more than two centuries ago.
By the way, "elenchus" is defined on this Wiktionary page as "a technique of argument associated with Socrates wherein the arguer asks the interlocutor to agree with a series of premises and conclusions, ending with the arguer's intended point."
The resolution of this particular debate could go a long way to determining the number of future federal prosecutions involving Coloradans in the medical marijuana industry.