Colorado marijuana consumers are running into less and less legal concerns as the culture contained within the mountain-riddled rectangle adopts, adapts, or otherwise creates an approach to cannabis which, through immersion, has come out both a revenue collecting champion and regulation wizard. In addition to tax revenues, the changes in police priority and prosecution of marijuana-related charges that came with adult legalization are saving untold tax dollars in the state. While only time will tell the overall impact of these sweeping changes in marijuana policy and regulation, the Colorado Supreme Court deliberated on a case from 2012, seeking to clarify the legality of certain provisions of the state medical marijuana program once and for all.
The Colorado Supreme Court ruling on medical marijuana law in the state sought to determine the legality of a return provision for cannabis plants and products that had been seized under the auspice of criminal behavior. In the state, violating possession limits or growing to many plants can still earn you fines, fees, and other legal penalties. For medical marijuana consumers operating with extended plant counts and caregivers operating at maximum plant allowances, sometimes legal action will force them to endure, for better or worse, a court experience.
The Legal Provision on Confiscated Medical Marijuana Product
The law in question: Article XVIII, Section 14 of the Colorado Constitution, containing within it the clause in question. It is made up of the following words:
“Any property interest that is possessed, owned, or used in connection with the medical use of marijuana or acts incidental to such use, shall not be harmed, neglected, injured, or destroyed while in the possession of state or local law enforcement officials where such property has been seized in connection with the claimed medical use of marijuana. Any such property interest shall not be forfeited under any provision of state law providing for the forfeiture of property other than as a sentence imposed after conviction of a criminal offense or entry of a plea of guilty to such offense. Marijuana and paraphernalia seized by state or local law enforcement officials from a patient or primary caregiver in connection with the claimed medical use of marijuana shall be returned immediately upon the determination of the district attorney or his or her designee that the patient or primary caregiver is entitled to the protection contained in this section as may be evidenced, for example, by a decision not to prosecute, the dismissal of charges, or acquittal.”
To put it simply: if the criminal charges are dropped, any medical marijuana cardholder or caregiver is entitled to get any plants, paraphernalia, or cannabis and cannabis products that were confiscated as evidence to the crime returned rather than forfeited to the state.
The Details of the Crime
Before the 2017 Colorado Supreme Court ruling on medical marijuana, Robert Crouse had charges brought against him in 2011 for the possession of 55 grown cannabis plants, with one pound of useable marijuana estimated per each. Additionally, he had six pounds of refined pot seized. After the defendant delivered the affirmative defense, proving he was within the legal right as a medical marijuana cardholder to possess the entire quantity the police had confiscated, the charges were effectively dropped.
As the constitutional amendment clearly states, seized cannabis plants, useable marijuana, and any other products are to be returned if the charges are dismissed or acquitted. After the trial had been decided in his favor, Crouse sought to retrieve his plants from the clutches of local law enforcement. In the process, the judge approved the return of marijuana in compliance with the state constitution, not concerned by instructing law enforcement to play an active role in supplying a federally illegal substance to a citizen, rather than just passively letting it happen. The decision was later sent to the Colorado Court of Appeals, where it was upheld in a 2:1 majority.
The Court of Appeals made the decision for three reasons, according to documents from the court, written as follows:
“We reject this contention, for three reasons. First, the ‘positive conflict’ phrase in the CSA’s preemption section, precludes applying obstacle preemption. Second, even if obstacle preemption applies, CSA section 885(d), which prevents federal prosecution of ‘any duly authorized officer of any State … who shall be lawfully engaged in the enforcement of any law …relating to controlled substances,’ would preclude applying prohibitions in other CSA sections to police officers complying with a court order issued under the return provision. Third, and making the same assumption, the recipient patient’s involvement in the return process also does not create obstacle preemption because the federal government could not commandeer state officials to seize and hold marijuana, and the MM Amendment does not require patients to either demand return or accept returned marijuana.Therefore, we affirm the trial court’s order requiring police officers to return marijuana and marijuana plants to defendant, Robert Clyde Crouse.”
That is an extremely confusing paragraph of legalese if you don’t know much about Constitutional law — specifically, how preemption works and what it means — as the concepts are sown deeply within the Colorado Supreme Court ruling on medical marijuana law. Let’s break it down:
The “CSA” refers to the Controlled Substances Act. We can look at “preemption” as the ability of Federal law, acts of Congress to supersede (i.e – the “supremacy clause“) state court decisions where legal conflicts may arise. The Court of Appeals had ruled that there was no “positive conflict” between the CSA and the laws requiring officers to actively distribute seized marijuana back to cardholders under specific circumstances, making it impossible for the return of marijuana to fall under “obstacle preemption”. “Obstacle preemption” is where a conflict between state laws and federal become an obstacle to the goals of Congressional acts. Since the officers would be “lawfully engaged” in the enforcement of “any law” involving controlled substances — the backbone of CSA criteria for situations where obstacle preemption applies — this would not be an example of obstructing congressional goals or, by extension, the CSA.
Null and Void in 2017
The burden placed on law enforcement by the wording of a provision within Colorado’s medical marijuana laws required distribution a federally illegal substance in a manner that the Colorado court of appeals judged to be no “positive conflict” that would allow the CSA to preempt the state provision.
Unfortunately, the 2017 Colorado Supreme Court ruling on medical marijuana consumers eligibility to have their medicinal products returned, just like any other type of confiscated (and not forfeited) property, flies in the conflict of the court of appeals decision nearly five years previous. The Colorado Supreme Court used a recent case as precedent, wherein a Dish Network employee was fired for using medical marijuana, which was exposed during a drug test, even when the state has laws permitting medical marijuana consumers with certain conditions to cultivate, possess, and consume marijuana. Since Dish ultimately cited the federal law in justification, under which marijuana use of any kind is illegal, the court maintained that in order for something to be considered “lawful” it must be both legal on the state and the federal level.
In effect, this definition of “lawful” behavior voids the legitimacy of the provision for returning medical marijuana to medical consumers. By deeming “lawful” as behavior in-tow with state and federal law, officers who distribute marijuana products back to medical cardholders from whom it was confiscated are no longer “lawfully engaged” in the enforcement of controlled substances laws, thereby ensuring the provision is preempted by the CSA.