With many in the cannabis world wary of a possible crackdown by the Trump administration, California lawmakers are weighing legislation meant to stifle cooperation between US law enforcement and local officials, a key ingredient of past federal enforcement actions.
California voters in November approved cannabis for adult use, welcoming another eighth of the US population to a legal-cannabis state. But President Trump’s appointment of Jeff Sessions, an outspoken cannabis critic, to lead the Department of Justice has put industry and officials on edge amid fears federal prosecutors could attempt to curtail or eliminate state systems. Cannabis remains illegal under federal law, more tightly regulated than opium or cocaine.
Joseph Tully, defense attorney
The California bill, AB 1578, was introduced about a week before White House Press Secretary Sean Spicer announced that the federal government could step up action against adult-use cannabis in legal states. If approved, the measure would prevent state and local authorities from aiding federal actions against cannabis businesses in compliance with California law.
This week, Attorney General Sessions seemed to double down on Spicer’s threats, though he was short on specifics. “I’m not sure we’re going to be a better, healthier nation if we have marijuana being sold at every corner grocery store,” he told a group of attorneys general on Tuesday morning. A day earlier, he told reporters: “Experts are telling me there’s more violence around marijuana than one would think.” (Many legalization advocates were quick to jump on the statement, noting that legal, regulated markets actually provide legitimate avenues to settle everyday business disputes without having to resort to black-market violence.)
AB 1578 appears to have been written exclusively by Northern California Democrats, with listed co-authors including Assembly Members Rob Bonta (D-Oakland), David Chiu (D-Oakland), and Jim Wood (D-Healdsburg) as well as state Sens. Nancy Skinner (D-Berkeley) and Scott Wiener (D-San Francisco). The only Southern California representative with fingerprints on the bill is Assembly Member Reggie Jones-Sawyer (D-Los Angeles), who introduced the legislation.
Washington state is mulling a similar measure, HB 1895, which would bar the use of public resources or on-the-clock hours to aid federal intervention into the state’s cannabis laws. Officials who break that state’s law would face disciplinary action or even termination.
While elected officials in Colorado and Oregon have spoken out in defense of state systems following the administration’s comments, neither state legislature appears to have introduced a non-cooperation bill similar to those in Washington and California.
“It’s a no-snitch policy,” defense attorney Joseph Tully told the Redding Record Searchlight of the California bill. “If people are obeying the laws of the state of California, law enforcement which hates the cannabis laws we have now can’t snitch someone out to the feds.”
Tully’s example isn’t just hypothetical. Past federal crackdowns on state cannabis businesses have been the product of close coordination between US and local authorities. In the months leading up to the 2011 crackdown in California, which shuttered hundreds of cannabis businesses statewide, some anti-cannabis cities—such as Lake Forest—reached out to federal prosecutors for help. The result was a surprisingly successful effort to shut down dispensaries and other businesses across large swaths of the state.
Just this week, some San Bernardino, Calif., City Council members reached out to the Trump administration asking for help addressing local issues, including “marijuana trafficking.”
Critics of AB 1578 say the bill has a long path to go before it becomes law. An Assembly committee could consider the legislation on March 21.
State officials in legal cannabis jurisdictions have spoken out strongly against the threat of a federal crackdown, with some pledging to use every tool at their disposal to defend state systems. The trouble is, it’s a pretty small tool box. Bills like those being considered in California and Washington could frustrate federal efforts to effectively prosecute large numbers of state-licensed businesses, but they’d be powerless prohibit federal officials from targeting individual businesses. Worse, the Department of Justice could choose to challenge state laws in court, arguing that the federal Controlled Substances Act pre-empts them. State systems could be thrown into disarray.
Legally speaking, the best protection comes from Congress. Currently the Rohrabacher–Farr amendment, a federal spending provision, prevents the DOJ from targeting state-legal medical marijuana systems or businesses comply with state law. But that measure’s set to expire in April, and it provides no obvious protection for nonmedical cannabis.
Federal lawmakers representing legal states have finally begun to coalesce behind adult-use systems, forming a cannabis caucus and introducing bills to expand federal protections. Congress has historically been wary of cannabis reform efforts, but new polls show record numbers of Americans favoring legalization, and an overwhelming 71 percent recently said they believe the federal government should respect state cannabis laws.
No doubt, a widespread crackdown by the Trump administration would be ambitious. To truly shut down the multibillion-dollar industry would require tremendous Department of Justice resources. However, even sporadic prosecutions could have devastating effects on individual businesses, their employees, as well as medical patients and families. More widespread enforcement efforts could endanger hundreds of millions of dollars in state tax revenue, which states like Colorado and Nevada rely on to help fund public schools.
Recent comments by Attorney General Sessions and White House Press Secretary Sean Spicer, many of which mischaracterize the industry in legal states, have already spooked state officials and business owners, not to mention run-of-the-mill consumers. Whether the statements are simply stern talk or signs of coming action, the White House now has the attention of nearly everyone with a stake in legal cannabis.