Arizona medical pot law no shield for users, growers, prosecutor says

Arizona's top federal prosecutor launched a pre-emptive strike against the state's medical-marijuana industry Monday, warning prospective pot growers and sellers that they could be prosecuted under federal drug-trafficking laws.

U.S. Attorney Dennis Burke, joining a growing chorus of federal law officers across the country, said his office will abide by a 2009 Justice Department memo that discourages prosecution of medical-marijuana users. But he said anyone who possesses or distributes marijuana is still violating federal law. And he singled out large operations.

U.S. Attorney Burke's letter

"The (Controlled Substances Act) may be vigorously enforced against large marijuana-production facilities," Burke wrote to Will Humble, director of the state Department of Health Services. "This compliance with Arizona laws and regulations does not provide a safe harbor, nor immunity from federal prosecution."

Opponents of the voter-approved law called on Gov. Jan Brewer to shut it down immediately, saying Burke's letter makes clear that state regulation of medical pot is illegal and anyone involved with dispensaries or cultivation sites could risk prosecution.

Even supporters said mounting federal pressure likely will have a chilling effect on the fledgling industry. They predicted a move toward smaller, tightly regulated operations and called the U.S. attorney's stance "reactionary." "If you increase the legal demand and don't increase the legal supply, you're going to increase revenues for the drug cartels," said Andrew Myers, co-founder of the Arizona Medical Marijuana Association, who led the campaign for Proposition 203 in Arizona.

Brewer said she was unaware of Burke's letter, but she doesn't intend to stop implementation of the program. "It was passed by the voters, and we've tried to implement the voters' wishes," Brewer said. Maricopa County Attorney Bill Montgomery said Burke's letter clarifies that federal authorities, despite their reluctance to prosecute sick people, will not look the other way when it comes to marijuana cultivation and distribution.

"I think this is the end of the medical-marijuana movement," Montgomery said. "You can't do a wink and a nod toward unlawful conduct and not have a consequence."

Burke said he wrote the letter "in response to numerous inquiries and to ensure there is no confusion regarding the Department of Justice's view of such a regulatory scheme." It follows similar correspondence in recent weeks between federal prosecutors, attorneys general and governors in several other states, and dispensary and greenhouse raids in Washington, Montana, Colorado and California.

On Monday, Rhode Island Gov. Lincoln Chafee halted the state's medical marijuana dispensary program after the U.S. attorney for his district threatened to prosecute those involved with licensing "compassion centers" there.

Washington Gov. Christine Gregoire on Friday vetoed a bill in to regulate the medical-marijuana industry, which voters approved in 1998. Federal prosecutors also made good on a promise to crack down on landlords who leased their property to dispensaries, raiding several Spokane dispensaries on Thursday.

In his two-page letter, Burke said "individuals and organizations - including property owners, landlords and financiers" could be prosecuted under federal drug-trafficking laws. But he made no mention of Arizona employees, who have been processing ID cards for hundreds of medical-marijuana users and are preparing to license dispensaries and cultivation sites this summer.

Montgomery said he believes state, county and municipal employees could be at risk if they help people use, grow or sell marijuana.

But Humble said he's not worried about his staff and believes Arizona's program will continue to operate, if on a smaller scale, in the wake of Burke's letter.

"It looks to me like a big shot across the bow for folks who were thinking about building a very large cultivation facility or a very large dispensary," Humble said. "I don't think it's going to end the program. I do think it's going to change what the program looks like."

Scottsdale attorney Jordan Rose, who advises potential dispensary owners, said Burke's letter should not change Arizona's medical marijuana landscape.

"There is a risk, and it cannot be minimized," Rose said. "But if anybody is saying the sky is falling, they didn't read the federal government's position."

In a letter to U.S. attorneys in October 2009, deputy U.S. Attorney General David Ogden indicated that, in light of the burgeoning industry and the variety of state laws, the administration didn't intend to prosecute sick people who used medical pot or the caregivers who provided it. The "Odgen memo" made clear that marijuana remains illegal and that federal prosecutors will go after drug traffickers, but some say the memo triggered the industry's growth in Colorado, California and elsewhere.

Arizona law limits to 12 the number of plants an individual can grow. But there are no limits to the size of a dispensary, and owners are allowed to operate separate cultivation sites, where they can grow an unlimited amount of marijuana.

Burke and other U.S. attorneys have mentioned "large" or "large-scale" operations in their letters to state officials, though they have not defined what that means.

Myers said most would-be dispensary owners had planned to grow upwards of 1,000 plants to supply their non-profit dispensaries. "I think it's not hard to imagine that people are going to be scared off by something like this," Myers said.

Burke was in Washington, D.C., on Monday and unavailable for comment.

Rep. John Kavanagh, R-Fountain Hills, said Burke's letter is reason enough for Humble to stop issuing marijuana cards and halt plans for granting dispensary permits.

"I hope he doesn't think the Legislature is going to bail him out if he facilitates the distribution of marijuana," Kavanagh said. "The federal government has told him that this is an illegal operation. I don't think they have to do the math for him."

by Mary K. Reinhart The Arizona Republic May. 2, 2011 11:27 PM




Arizona medical pot law no shield for users, growers, prosecutor says