only thing keeping a pair of California cannabis growers out of prison.
Federal prosecutors filed criminal charges against the growers, Anthony Pisarski and Sonny Moore, after raiding their Humboldt County property in 2012. But during the evidentiary process, the two argued that their operation followed California law and thus should be protected from federal prosecution under Rohrabacher–Blumenauer.
A quick refresher: Formerly known as Rohrabacher–Farr, Rohrabacher–Blumenauer is an amendment to a federal appropriations bill that bars the Justice Department from using resources to prosecute state-legal cannabis. In August 2016, the 9th US Circuit Court of Appeals—which includes cannabis-legal states of California, Washington, Oregon, Alaska, Arizona, Montana, and Hawaii—ruled that the provision also protects individual businesses that comply with state law.
“If DOJ wishes to continue these prosecutions,” the court wrote in the 9th Circuit case, US v. McIntosh, “Appellants are entitled to evidentiary hearings to determine whether their conduct was completely authorized by state law.”
Which brings us back to the Humboldt growers. Following an evidentiary hearing, US District Judge Richard Seeborg determined that Pisarski and Moore were indeed compliant with state law. “Their conduct strictly complied with all conditions imposed by California law on the use, distribution, possession and cultivation of marijuana,” Seeborg wrote. Earlier this week, he halted the federal government’s case against the growers, citing McIntosh.
The defense attorney for the pair, Beverly Hills-based Ronald Richards, told the LA Weekly that the decision was unusual—and may help other cannabis entities going forward. “This is the first time in my 23-year career I’ve had a case stopped because of an appropriations rider,” he said. “It opens the door for people not to get scared.
Tamar Todd, director of the Drug Policy Alliance’s office of legal affairs, told the Weekly that the court’s stay of the case “shows that you can prevail—defendants in federal court could have their prosecutions halted.”
“It’s very encouraging,” she added. “It gives a lot of teeth to Rohrabacher–Farr.”
But while the case is closed for now, the government could seek to reopen it. Judge Seeborg’s stay of the case could be undone if Congress fails to renew Rohrabacher–Blumenauer next month.
US Attorney Jeff Sessions, a strict anti-drug advocate, asked lawmakers in May to end the protection, calling it “unwise for Congress to restrict the discretion of the [Justice] Department to fund particular prosecutions, particularly in the midst of an historic drug epidemic and potentially long-term uptick in violent crime.” But in late July a Senate Committee OK’d the amendment, adopting it as part of an appropriations bill set for discussion next month.
Crucially, Rohrabacher–Blumenauer in its current form protects only medical cannabis programs—it offers no protection for adult-use cannabis. A nonbinding Justice Department memo issued under the Obama administration says prosecutors won’t interfere with state cannabis systems, but Sessions has said his office is reviewing that guidance.
Sessions also recently sent letters to state officials in Washington, Colorado, and Oregon in what appears to be an effort to show those states’ systems are failing to adequately regulate cannabis markets. Some state officials have since pushed back, accusing the statistics of having been cherry-picked in a deliberate attempt to mislead.
“Honestly it’s hard to take him seriously if he relies on such outdated information,” Washington state Attorney General Bob Ferguson told the Seattle Times.
One Colorado state senator went further.
“Jeff Sessions needs to keep his reefer madness paranoia in Washington DC and let us handle a decision we’ve made,” Sen. Michael Merrifield told a local ABC affiliate. “I think these numbers are exaggerated or pulled out of somebody’s hat.”