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January 24, 2017

Split Colorado Supreme Court concludes federal law precludes state officers from returning marijuana to acquitted defendants

The Colorado Supreme Court yesterday issued an interesting ruling driven by the conflict between the state's marijuana reforms and federal prohibition. (SCOTUS fans might note the majority opinion was authored by Justice Allison Eid, who is on Prez Trump's (not-so-)short list.) Here are parts of how the majority opinion in Colorado v. Crouse, No. 2017 CO 5 (Colo. Jan 23, 2017) (available here), gets started:

The state’s medical marijuana amendment, article XVIII, section 14(2)(e) of the Colorado Constitution, requires law enforcement officers to return medical marijuana seized from an individual later acquitted of a state drug charge. The federal Controlled Substances Act (“CSA”) prohibits the distribution of marijuana, with limited exceptions. 21 U.S.C. §§ 801–971 (2012). The question in this case is whether the return provision of section 14(2)(e) is preempted by the federal CSA....

The CSA does not preempt state law on the same subject matter “unless there is a positive conflict between [a] provision of [the CSA] and that State law so that the two cannot consistently stand together.” 21 U.S.C. § 903 (2012). The return provision requires law enforcement officers to return, or distribute, marijuana. Distribution of marijuana, however, remains unlawful under federal law. Thus, compliance with the return provision necessarily requires law enforcement officers to violate federal law. This constitutes a “positive conflict” between the return provision and the CSA’s distribution prohibition such that “the two cannot consistently stand together.”

Moreover, the exemption relied upon by the court of appeals does not resolve this conflict. Section 885(d) of the CSA immunizes only those officers who are “lawfully engaged in the enforcement of any law . . . relating to controlled substances.” 21 U.S.C. § 885(d) (2012) (emphasis added). This court has held that an act is “lawful” only if it complies with both state and federal law. Coats v. Dish Network, LLC, 2015 CO 44, ¶ 4, 350 P.3d 849, 851. The officers here could not be “lawfully engaged” in law enforcement activities given that their conduct would violate federal law.

Here is part of the start of the dissent authored by Justice Gabriel:

Because I believe that the plain language of § 885(d) of the CSA, 21 U.S.C. § 885(d), immunizes federal and state officers from civil and criminal liability in the circumstances at issue here, I perceive no conflict between the CSA and section 14(2)(e) of article XVIII of the Colorado Constitution, nor do I believe that it is impossible to comply with both the CSA and the Colorado Constitution, as the majority implicitly and the People expressly contend.

Though not in any way related to this ruling, I cannot help but take this not-quite-perfect opportunity to share titles and links to some coverage of marijuana reform issues from my other major blog, Marijuana Law, Policy and Reform:

January 24, 2017 at 11:07 AM | Permalink


Just going by the excerpts, realizing the full remarks often colors judgment, the majority seems to be on solid footing here. Immunity from liability as such wouldn't necessarily be enough there -- it can be illegal on federal law grounds and you can be immune from punishment without being obligated to also return the marijuana. Overall, this shows how the two tier system in place is complicated and a clear rule fully giving state discretion here would be a major step. It also goes to show that how Sessions et. al. applies the rules in question, clearly open to debate, is important.

Posted by: Joe | Jan 24, 2017 12:32:14 PM

States shouldn't be handing out contraband. This should have been an easy case.

Off topic: http://detroit.cbslocal.com/2017/01/24/michigan-man-whose-drug-sentence-commuted-by-obama-is-shot-dead/

Posted by: federalist | Jan 24, 2017 3:13:59 PM

A Controlled Substances Act that fails to ban alcohol and tobacco is lawyer quackery. If pubic safety is the aim of the Act, it is allowing substances that kill 500,000 people directly, and over 25,000 people indirectly, by suicide and murder.

Lawyer quackery violates Fifth Amendment procedural due process rights. It may be ignored. If federal officials assert the Supremacy Clause, any litigation would take so long as to moot the claim. The substances would have long been consumed.

Posted by: David Behar | Jan 24, 2017 4:21:37 PM

If, as in this case, 1)defendant is found not to have violated the law and 2)the seized materials cannot be legally returned to the defendant, does this imply 3)payment requirement for destruction of property by the state? Also, given the outrageous prices cited by LE to puff up values of seizures (and possibly already filed in a case such as this), the assessed cost of damage could be rather high.

Posted by: SS | Jan 25, 2017 10:15:10 AM

I think the statute clearly would cause the officers to violate Federal law. Therefore, the court's ruling is logical. I do think there is an argument for compensation under the Takings Clause, though.

Posted by: Erik M | Jan 25, 2017 2:55:32 PM

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