Medical Marijuana Raids in Colorado Raise Questions About Federal Forbearance

Today
federal agents, assisted by local police, staged the biggest
crackdown on marijuana dispensaries in Colorado since the state
legalized cannabis for medical use in 2000. The Denver
Post
reports that the raids hit more than a dozen dispensaries in
the Denver area, plus businesses in Boulder and elsewhere.

Jeff Dorschner, a spokesman for John Walsh, the U.S. attorney
for Colorado, said the operation “comports with the
Department’s recent guidance regarding marijuana
enforcement matters.” The August 29 memo
to which Dorschner refers indicated
that the feds would not interfere with marijuana businesses that
comply with state law unless their activities implicated one or
more of these eight “enforcement priorities”: 1) “preventing the
distribution of marijuana to minors,” 2) “preventing the diversion
of marijuana from states where it is legal under state law in some
form to other states,” 3) “preventing drugged driving and the
exacerbation of other adverse public health consequences associated
with marijuana use,” 4) “preventing the growing of marijuana on
public lands,” 5) “preventing marijuana possession or use on
federal property,” 6) “preventing revenue from the sale of
marijuana from going to criminal enterprises,” 7) “preventing
violence and the use of firearms in the cultivation and
distribution of marijuana,” and 8) “preventing state-authorized
marijuana activity from being used as a cover or pretext for the
trafficking of other illegal drugs.”

Which of those concerns triggered today’s raids? Walsh’s office
won’t say, at least not yet. “Although we cannot at this time
discuss the substance of this pending investigation,” Dorschner
said in a written statement, “there are strong indications that
more than one of the eight federal prosecution priorities
identified in the Department of Justice’s August guidance memo are
potentially implicated.”

The raids come just six weeks before Colorado’s state-licensed
pot shops are scheduled to start selling marijuana for recreational
use. But industry leaders seem to be viewing their competitors’
legal troubles with equanimity. “Really, I see enforcement actions
happening as a sign our industry is maturing and this program is
working,” Mike Elliott, president of the Medical Marijuana Industry
Group (MMIG), told the Post, although he did add that
“it’s important to remember people are innocent until proven
guilty.” MMIG board member Andy Williams, who runs Denver’s
Medicine Man dispensary, appeared pleased as well. “I want the bad
actors gone, quite honestly,” he said. 

Mason Tvert, who co-managed Colorado’s legalization campaign and
now works for the Marijuana Policy Project, was a bit more wary.
“The Justice Department said it would respect states’ rights to
regulate marijuana, and that it would not go after businesses as
long as they are complying with state laws,” he said. “We hope they
are sticking to their word and not interfering with any
state-regulated, law-abiding businesses.” Rob Corry, a Denver
attorney and marijuana activist, told the Post: “That is
true to form, the DOJ, behaving like the classic schoolyard bully
picking on the little guy….The DOJ needs to explain in a logical
fashion why they are picking and choosing, going after only some of
these entities when every one of them selling marijuana is running
afoul of the federal law.”

These raids are an unusually aggressive move by Walsh, who until
now had mostly contented himself with shutting down dispensaries he
deemed too close to schools by sending them threatening letters.
But the Justice Department’s new policy regarding state-legal
marijuana businesses leaves
a lot of leeway for prosecutorial discretion. If I were a
dispensary owner planning to get into the newly legal recreational
market, I would pay careful attention to Walsh’s explanation,
assuming he ever offers one, of exactly how businesses such as
VIP Cannabis crossed the
Justice Department’s faintly marked red lines.