Marijuana advocates: DOJ memo clears path for Arizona, other states

Evan Wyloge//August 29, 2013

Marijuana advocates: DOJ memo clears path for Arizona, other states

Evan Wyloge//August 29, 2013


When it comes to possession or use of marijuana, the United States Department of Justice will not focus on enforcement of federal marijuana laws where state laws allow it, a memo released today explains.

The Justice Department memo also says that where state laws permit marijuana use, such as in Arizona, federal drug laws will be an agency priority only under certain circumstances. Those are when marijuana is diverted to states where it remains illegal under state law, or when the state systems are being used as a “cover or pretext for the trafficking of other illegal drugs or illegal activity.”

Aggravating factors, such as sale to minors, gang activity, violence or firearm use and drugged driving, will remain within the federal government’s scope of enforcement priorities.

The Justice Department’s memo emphasizes that it is only guidance for investigation and prosecution and that it in no way alters federal law. But that didn’t stop marijuana law reform advocates from declaring it a victory and identifying its broad implications.

Ryan Hurley, an attorney with Rose Law Group who focuses on medical marijuana issues, said the memo speaks directly to a challenge led by Maricopa County Attorney Bill Montgomery aimed at having the state law ruled unconstitutional because of the conflict between state and federal drug laws.

At the core of the lawsuit White Mountain Health Center v. Maricopa County, Montgomery argues that county zoning officials and employees cannot process zoning applications for medical marijuana dispensaries, because doing so could make them vulnerable to federal drug law prosecution.

“This memo answers that question,” Hurley said. “It will be a piece of evidence, weighed in the case.”

Montgomery rejected Hurley’s argument, pointing to the fact that marijuana is still illegal under federal law, that the memo changes nothing and that the current case should be unaffected by guidance memos from the Justice Department.

“Any suggestion that this will have an impact on the White Mountain case are a pipe dream,” he said in an email. “We will follow the law and the courts should too.”

So far, a Maricopa County Superior Court judge has ruled against Montgomery. The case awaits action in the state appellate court, and was declined for emergency action by the state Supreme Court in December 2012.

U.S. Justice Department memo on marijuana law enforcement

Dan Riffle, director of federal policies at the Marijuana Policy Project, called the ruling the “white flag in the federal government’s war on marijuana.”

Riffle’s group has led medical marijuana and marijuana legalization efforts in several states, including Arizona in 2010.

So far, 20 states plus Washington D.C. have adopted medical marijuana laws. In Colorado and Washington marijuana has been legalized in what proponents call a “tax and regulate” model.

Riffle said the group is organizing a Colorado/Washington-style legalization effort in Alaska in 2014, and in Arizona, California, Maine, Nevada and Oregon in 2016.

The Justice Department memo, along with fast-shifting public opinion and the momentum for state adoption of marijuana legalization all add up to one conclusion, Riffle said: “It’s clear marijuana prohibition is on it’s way out.”

Riffle predicts the memo will ease the concerns of state and local lawmakers, who may have been reticent to support reforming marijuana laws before.

The new memo also harkens back to previous Justice Department notes on the topic, to illustrate the shift in enforcement priorities. Where a memo from 2011 said that large-scale marijuana cultivation could be seen as an indication of activity within the scope of federal law enforcement, the new memo states that large-scale production can be part of the state-authorized programs that are not an enforcement priority.