Compliance with State Medical Marijuana Permit a Defense to Federal Prosecution, Ninth Circuit Rules

As specialists in permitting medical marijuana in cities and counties under California’s Medical Marijuana Regulation and Safety Act (MMRSA) and local land use ordinances, we are frequently asked whether a local permit provides a defense to federal prosecution under the Controlled Substances Act (CSA). While the 2013 “Holder” memo helped reduce tension between burgeoning state legalization and federal prohibition, the federal government has still so far refused to remove marijuana from the list of Schedule I illegal substances. At the same time, marijuana has continued its steady state-by-state march toward medical and commercial legalization.

On Tuesday, the federal Ninth Circuit Court of Appeals introduced some welcome – if potentially temporary – relief to the remaining conflict between state legalization and federal prohibition.

In United States v. McIntosh (9th Cir. Aug. 16, 2016, No. 15-10117, etc.), the Ninth Circuit set aside a group of federal marijuana prosecutions under the CSA. Relying on an appropriations bill found at Section 542 of the Consolidated Appropriations Act of 2016, the Court found that Congress has not appropriated funds to the Department of Justice for use in prosecuting marijuana activities that are illegal under federal law but legal under state law.

Under Tuesday’s ruling, individuals who have received state permits in full compliance with a state’s medical marijuana permitting laws can use those permits as a defense to federal prosecution. The drawback to this ruling is that it depends on Congress continuing to extend out its funding limitation. The court’s ruling also cautions that this remains a limited defense, which would evaporate if funding for marijuana prosecutions is restored in Congress’ next budget bill. But for those interested in obtaining local permits and fully complying with MMRSA, Tuesday’s ruling is good news.

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