Since 2014, Congress has maintained an appropriations rider prohibiting the Department of Justice (“DOJ”) from using funds in relation to 33 named states and territories “to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538, 128 Stat. 2130, 2217 (2014). DOJ has regarded this as preventing only efforts directed at those states, and not a bar to its prosecution of violations of federal law by individuals engaging in medical marijuana activities that would be permissible under state medical marijuana laws.

In accordance with that interpretation, DOJ brought criminal actions against a number of marijuana cultivators, processors and distributors in California and Washington. The defendants sought to have their cases dismissed and asked for an injunction against DOJ. Ten of those cases were consolidated for consideration by the United States Court of Appeals for the Ninth Circuit. The opinion, U.S. v. McIntosh, No. 15-10117 (9th Cir. Aug. 16, 2016), contained the following points:

  1. The Appeals Court had jurisdiction because the lower courts had denied injunctions sought by the defendants
  2. The defendants had standing to challenge DOJ’s allegedly improper use of funds
  3. DOJ’s interpretation of the rider was incorrect. Prosecuting individuals under the federal Controlled Substances Act, 21 U.S.C. §§ 801 et seq., for marijuana felonies would inevitably “interfere” with states’ efforts to implement their medical marijuana programs
  4. The DOJ is, however, entitled to prosecute individuals who are not acting in strict compliance with the programs of the listed states
  5. The cases should be remanded for evidentiary hearings on whether the defendants were actually acting in conformity with their states’ medical marijuana laws

For those interested in medical marijuana in Ohio, it is important to note that Ohio is not one of the listed states, so the current version of the appropriations rider does not protect Ohio or Ohio defendants. With the Ninth Circuit’s broad interpretation of the rider, it may be that passage of the rider for the 2017 fiscal year will not be as automatic as in prior years and will not be extended to additional jurisdictions.