Ever since California enacted the first medical marihuana law in the early 1990's, the interplay between the Federal Controlled Substances Act and state medical marihuana statutes have caused local governments and state agencies quite a headache.

     Many interpreted a 2009 letter from Assistant United States Attorney - Ogden - reporting that the federal government would not allocate its resources to prosecuting patients and distributors who are in "clear and unambiguous compliance" with state medical marihuana laws as the Obama administration's silent bow to state rights.  The consensus was that the political climate was shifting towards accepting medical marihuana as a therapeutic rather than a Schedule I controlled substance. 

     Fast forward two years later.  Federal raids and complaints against medical marihuana dispensaries are on the rise.  The recent nationwide crackdown is evidenced by the Department of Justice's response to a request to clarify rights regarding a proposed zoning ordinance in Oakland California.  The ordinance called for the licensure of industry-sized marihuana grow centers.  The Department responded by warning the City of Oakland that any commercial operation was a violation of federal law.  After the responsive letter was released, California's U.S. Attorney announced that if the City passed the law, it was likely that the city council and other local officers ordaining and enforcing the ordinance would face penalty.

     One month after the California show down, the Governor of Washington requested similar guidance from the U.S. Attorney General.  Specifically, the Governor wanted to know the Department's position in light of the Ogden and California letters.  The Governor further inquired whether state employees charged with inspecting and auditing licensed dispensaries would be immune from federal prosecution. 

     In a swift and pointed response, U.S. Attorneys from both the Eastern and Western Districts of Washington wrote that the proposed legislation is contrary to federal law, the department could pursue both civil and criminal penalty against dispensaries, and state employees who conducted activities mandated by the legislative proposals would not be immune from liability under the Controlled Substances Act.

     It seems the federal government has limited and further defined the scope of the Ogden letter.  Deference to use may only be given to individuals who do not manufacture or distribute medical marihuana.  Federal law enforcement agencies are not as concerned with seriously ill individuals who use medical marihuana in compliance with state law.  Rather, the federal government made it a point that its "limited resources" are more effectively spent enforcing the Controlled Substances Act against large-scale grow operations. 

     Whether state employees charged with implementing state licensing schemes are subject to liability may be in conflict with Section 885(d) of the Controlled Substances Act.  The Section states that no civil or criminal liability shall be imposed on any officer of any State who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.  For more information, please read the following California and Washington articles.