The chief federal prosecutor in Arizona warned patients, dispensary operators and cultivators of medical marijuana Monday they still could wind up behind bars.
In a letter to the state health director, Dennis Burke said he intends to follow “guidance’’ from superiors in Washington not to focus his limited resources on seriously ill patients who use marijuana as part of a doctor’s treatment program.
“The public should understand, however, that even clear and unambiguous compliance with the Arizona Medical Marijuana Act does not render possession or distribution of marijuana lawful under federal statute,’’ Burke wrote to Will Humble
Potentially more significant, Burke had special words of caution to those who are in the business of growing marijuana even if they have a cultivation license from the state. And he said even those on the periphery, including property owners, landlords and organizations which finance dispensaries, risk not just federal criminal prosecution but also having the assets seized.
“This compliance with Arizona laws and regulations does not provide a safe harbor, nor immunity from federal prosecution,’’ Burke wrote.
Humble, who had sought Burke’s input, said his agency intends to continue issuing cards allowing those with a doctor’s recommendation to possess and smoke marijuana. As of last week the state had approved nearly 1,200 applications, with about 100 new requests coming in each day.
He also is pushing ahead with review of applications from those who want to operate state-regulated dispensaries to sell the drug and cultivation facilities to grow it.
In Rhode Island Monday, Gov. Lincoln Chafee, who got a similar letter from the U.S. attorney there, announced his state will delay plans to give permits to groups selected by the state to be distributors of the drugs under Rhode Island’s medical marijuana law.
Arizona Gov. Jan Brewer said she was not aware of Burke’s letter. But she told Capitol Media Services there is something slightly funny about Burke saying Arizonans who follow state law risk federal prosecution.
“You know what I would say to Dennis Burke?’’ she said. “Why don’t they enforce their immigration laws?’’
But attorney Jordan Rose, who has been advising those going into the business, said nothing in Burke’s letter is markedly different than what has been said U.S. attorneys in other states with medical marijuana laws, where patients continue to be able to get the drug.
The law, approved by voters in November, allows those who have a doctor’s recommendation and a state-issued card to purchase, possess and use up to 2 1/2 ounces of marijuana every two weeks.
Whether they’ll be able to get the drugs from state-regulated dispensaries, however, depends on whether individuals are businesses who are needed to cultivate, harvest, transport and sell it are willing to face legal jeopardy.
Rose said after reading the letter, her advice to her clients who want to get into the business remains the same as what it was after the measure was approved: Go ahead, but be warned.
“You have a risk,’’ she explained.
“Whether you decide to take that risk or not is a business decision,’’ Rose continued. “We’ve always advised them that this is a business that has a particularly acute risk in that it’s federally not legal.’’
That risk became apparent when agents from the U.S. Drug Enforcement Association raided marijuana dispensaries two months ago in West Hollywood, California. Similar raids occurred in Montana.
But those raids appear to be isolated. And Joe Yuhas, spokesman for the Arizona Medical Marijuana Association, said he doesn’t expect similar problems here.
The difference, Yuhas said, is that Arizona has a well-regulated program, with a limit on the number of dispensaries and sharp curbs both on who qualifies for the medical marijuana cards.
Humble said what he takes from the letter -- and from separate conversations with federal attorneys -- is that individual users with medical marijuana cards face virtually no risk of prosecution. In fact, Humble said, he does not expect most dispensaries to wind up under federal scrutiny.
“Really, it’s not about whether you’re in compliance with your state law but rather are you a large-scale actor who’s manufacturing, distributing, possessing, marketing in clear violation of the (federal) Controlled Substances Act,’’ he said.
Humble said that’s borne out by reading a bit between the lines of what Burke did -- and did not -- write.
On one hand, he said, is the general statement that marijuana possession and distribution remains illegal under federal law. On the other hand, Humble pointed out that Burke said federal law may be “vigorously enforced’’ against “large marijuana production facilities.’’
“When you see the key word ‘vigorously enforce,’ that’s like them saying, ‘OK: Now here’s where you pay attention.’ ‘’
That appears to be the case in Montana.
“We have made clear that we are not going to look the other way while significant drug-trafficking organizations try and shield their illegal efforts from investigation and prosecution through the pretense that they are medical dispensaries,’’ Justice Department spokeswoman Jessica Smith said at the time.
Humble said he separately got verbal assurances from Burke’s staff that his own workers would not be prosecuted for “facilitating’’ violations of federal laws for processing the permits for marijuana users, sellers and cultivators.
Yuhas said it would be unfortunate if Burke’s position scared off would-be dispensary operators and cultivators, “driving (patients) black to the drug cartels and the black market.’’
Burke’s letter comes just one business day after Gov. Jan Brewer signed legislation designed to help Arizona businesses deal with the possibility that some of their workers may be legally entitled to use marijuana.
The measure bars an employer from firing or disciplining a worker based on whether a person has a card allowing possession and use of marijuana. That same protection extends to someone who tests positive for drugs unless the company could prove the employee used or possessed marijuana on the job or was “impaired’’ during work hours.
The voter-approved law, however, has no definition of what that means. The new statute Brewer signed is designed to give legal protection to employers who take actions against workers in safety-sensitive positions who, in good faith, they believe may be impaired.
The interplay between federal prohibitions and state law has come up before.
Rules that govern the conduct of attorneys prohibit them from “knowingly counseling or assisting a client to commit a crime.’’ That left many in the position of not knowing what, if anything, they could advise those who want to get in the business of operating a dispensary.
In a formal opinion, the State Bar of Arizona told attorneys they can legally represent the operators of medical-marijuana dispensaries without facing ethics charges.