Could Colorado State employees who work in the regulatory end of the medical marijuana business be prosecuted for their role in what the federal government increasingly seems to view as an illegal enterprise?

According to Department of Justice attorneys in Washington State, it is not outside the realm of possibility.

As the Washington Legislature debated legislation to broaden that state’s medical marijuana operations, Governor Christine Gregoire wrote a letter to U.S. Attorney General Eric Holder asking for guidance.

Holder, of course, did not write back. Instead Gregoire got a letter from U.S. Attorneys Jenny A. Durkan and Michael C. Ormsby of the U.S. Department of Justice Eastern District of Washington.

In this letter, dated April 14, the attorneys write that after consultation with Holder, the feds are prepared to enforce the Controlled Substances Act “vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law. The Department’s investigative and prosecutorial resources will continue to be directed toward these objectives.”

The letter makes it clear it is not just people involved directly in the medical marijuana trade who might be prosecuted. The letter specifically states that landlords and financiers could be prosecuted.

Then, the zinger: “In addition, state employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the CSA.”

See the letter here (PDF).

That legislation passed this week, and the governor has vowed to veto at least part of it, out of fear, she says, that state employees could be prosecuted.

She issued this statement Thursday:

“I realize the value that medical marijuana has for patients and support the voter-approved initiative. I also agree with the intent of the Legislature to clarify ambiguity surrounding search and arrest as well as concerns around dispensaries and access. We need to create a system that works. “I asked the Legislature to work with me on a bill that does not subject state workers to risk of criminal liability. I am disappointed that the bill as passed does not address those concerns while also meeting the needs of medical marijuana patients. “I will review the bill to determine any parts that can assist patients in need without putting state employees at risk. No state employee should have to break federal law in order to do their job.”

Not wanting to be left out of the debate, the New Jersey attorney general has written a letter to Holder asking whether people participating in that state’s medical marijuana program are in danger of prosecution.

Mike Saccone, communications director for the Colorado Attorney General’s office said the AG’s office was aware of the Washington letter. He said it is clear that the Department of Justice is not giving states with legalized medical marijuana a free pass based on the Ogden memo (below). He said the letter does raise questions about Colorado’s own medical marijuana industry that may need to be addressed at some point. At this time, he said Colorado had not received any similar letters.

“What we’re seeing is a complete reversal of the 2009 Ogden memo,” said attorney Richard Gee, who does a lot of medical marijuana work.

Some medical marijuana advocates think the Ogden memo essentially says federal law enforcement will look the other way if states legalize and regulate medical marijuana. Others say it did not go that far. You can read the memo here.

Quoting from the 2009 memo itself, it is clear the feds were not giving up the right to prosecute even those in compliance with state medical marijuana laws. To wit: “Of course, no State can authorize violations of federal law.”

And this:

Finally, nothing herein precludes investigation or prosecution where there is a reasonable basis to believe that compliance with state law is being invoked as a pretext for the production or distribution of marijuana for purposes not authorized by state law. Nor does this guidance preclude investigation or prosecution, even when there is clear and unambiguous compliance with existing state law, in particular circumstances where investigation or prosecution otherwise serves important federal interests.

If there was ever any question about whether states, and medical marijuana businesses authorized by states, could hide behind the Ogden memo, those days are over as more recent memos ably illustrate.

Gee said that under the CSA (Controlled Substances Act), the feds can go after anyone involved in buying or selling marijuana.

While he said he found the Washington letter troubling, he did not think Colorado is going to get a similar letter any time soon. He said Colorado has one of the best defined and best regulated medical marijuana frameworks in the country, and that fact may keep the feds at bay here.

“There has not been any prosecution of legitimate medical marijuana businesses in Colorado, nor have there been any threats,” he said.

He noted that federal law absolutely trumps state law, and that the federal government could crack down on medical marijuana in Colorado if it wanted to.



Criminal attorney Kristi Martinez, who has been a medical marijuana patient, said the idea of DOJ saying state employees are not immune raises the question of complicity.

“If the state is issuing licenses for something illegal under federal law, is the state complicit? If a state official grants a license for something illegal under federal law, is that state employee complicit? Are they conspiring to break federal law?”

She said when voters passed the constitutional amendment making medical marijuana legal in Colorado, the state then took the next logical step of crafting a framework to regulate the business. “If the state creates a regulatory framework for medical marijuana, is the state complicit? If law enforcement officials are present in rooms where regulations are being crafted, are they complicit, are they committing conspiracy?” she asked.

“That is an argument that can be made,” Gee said. “Marijuana is illegal under federal law. Could the feds prosecute state employees? Yes, they could. Will they do it? I doubt it.”

Laura Kriho, spokesperson for the Cannabis Therapy Institute agreed that the feds will probably not prosecute state employees. If they do, she said, they might well start with former governor Bill Ritter, who signed legislation regulating medical marijuana in Colorado.

She disagreed with Gee about Colorado being better regulated and thus less likely to face federal scrutiny. She said Washington’s regulations were tighter than Colorado’s. “I don’t think the feds care how well regulated it is. It is all illegal to them.”

She said that even before the Washington memo and a similar one sent to officials in California, the Ogden memo itself offered little protection. “That was an allocation of resources memo.” Indeed much of the memo dealt with the fact that the Department of Justice has limited resources and can’t chase down every dope smoker with a pot card.

“I bet we get a letter like that (Washington) soon,” she said.

Real estate agent John Wickens does a lot of work with the medical marijuana industry, brokering sales of retail locations as well as leases of warehouses used for growing marijuana.

Thus far, he said his clients do not seem to be nervous about attention from federal law enforcement.

“I have not heard anything,” he said.

Like Gee, he said Colorado seems to be the strongest state for medical marijuana. He says there is still lots of money coming into the state.

Among his clients are people who own hundreds of thousands of square feet of commercial real estate and who are still comfortable doing business with medical marijuana clients. “These are smart, careful, successful people and they would not be renting space for grow operations if they were concerned about losing their property,” he said.

The Department of Justice did not return a phone call.

In related news, this week Americans for Safe Access, issued a “report card” to President Obama, giving him an F for his handling of medical marijuana issues.