Jeff Sessions & Medical Marijuana in Arizona

January, 18 2018 by Michael Harwin

As a result of United States Attorney General Jeff Sessions’ recent announcement, January 4, 2018, about renewed enforcement focus concerning federal marijuana laws, despite state legalization, Arizona’s Medical Marijuana Laws have been back in the news. With significant uncertainty about how the recent pronouncement could affect Arizona medical marijuana users and businesses here in Arizona, several local media pieces have been produced. Here’s a recap of current thinking and recent legal developments.

Medical Marijuana and Weapons Possession

First, Michel Marizco, a veteran reporter for National Public Radio affiliate KJZZ, recently interviewed both me and Southern Arizona industry leader, Dito Hamilton, about the effect of these changes, for a local Morning Edition Segment. This segment aired last Monday, January 7 and you can access both the print article (Fronteras) and the KJZZ news broadcast here: Marijuana Laws: Some New, Some Old | Fronteras Desk.

In sum, the initial view is that the Sessions pronouncement would at the very least, both send a signal to lawmakers, and also create industry uncertainty for manufacturers, dispensaries, and financial institutions considering becoming involved in the medical marijuana business (as explained in the media pieces medical marijuana is a cash business because federally insured financial institutions are prohibited from handling the proceeds).

I indicated, that although federal enforcement priorities in Arizona, a border state, may suggest that security-related issues such as illegal immigration and cartel trafficking and violence related to cocaine, heroin and other Schedule I substances would likely remain a priority, the shift in the DOJ enforcement posture may suggest to federal prosecutors that in cases where a business or individual is already being investigated for other federal violations, a direct or indirect charge related to state-legal marijuana may be a viable option, an additional arrow in the prosecutorial quill.

For example, probably too few people fully recognize that pursuant to 18 USC § 922(g), under federal law, a person who is a current drug user, ostensibly including state-legal marijuana, such as medical marijuana under the 2010 Arizona Medical Marijuana Act (AMMA), is nonetheless considered a federally prohibited possessor of any firearm or ammunition. Such charge is considered a serious felony.

As surprising as this may sound, this means, and this has been the law for some time, that, in short, a person who uses medical marijuana legally under state law, and commits no other crimes, could be nevertheless prosecuted federally for illegally possessing any firearm or ammunition.

And here in Arizona, a western state, where many people own and possess firearms, the shift in posture could create a hidden trap for unwary otherwise law-abiding Arizona medical marijuana users.

Thus, in light of the January 4th Sessions pronouncement, a federal prosecutor investigating an individual for other criminal conduct could be more apt to use a 18 USC §922(g) allegation as a secondary or tertiary charge.

Students Using Medical Marijuana on Campus

Second, on January 10, 2018, the Arizona Supreme Court announced that it would take up the issue as to whether a University student could be prosecuted for using medical marijuana on a college or school campus. The grant of a petition for review, pursued by Arizona Attorney General Mark Brnovich, means that the State Supreme Court must now decide whether a college student can be prosecuted for using medical marijuana on campus. The court ruling below, from the Arizona Court of Appeals, previously held that a student could not be prosecuted for such use. Now that decision could be reversed.
Note that our firm represents many University students.

While it is difficult to say whether the January 4th Sessions pronouncement had any direct or indirect effect on the Supreme Court’s decision, to grant review, the court’s decision, at the least, casts a fairly long shadow of uncertainty upon students who possess medical marijuana cards, especially those who live on campus. Moreover, because under Arizona law possession of popular marijuana extracts is considered and often charged as a felony, the stakes may be particularly high for some Arizona students. Oral argument is set next month.

Recent Legislative Initiatives

Third, there have been at least two recent legislative initiatives on the heels of the January 4 pronouncement. On January 9, Tucson-area Republican lawmaker Vince Leach introduced a bill at the Arizona legislature, HB 2066, that would require medical marijuana users to pay for a drug-abuse education program. Additionally, on January 8th, Vince Leach also introduced a bill, HB 2068, that would criminalize medical marijuana use for those on probation. Under current law, felony probationers, even for violent and drug-related crimes are permitted to use medical marijuana on probation here in Arizona. HB 2068 would change that.

Areas of Concern for Attorneys

Fourth, in late 2016 the Arizona Supreme Court rejected a bid to repeal Supreme Court Ethics rules that threaten Arizona lawyers with disbarment if they help medical marijuana-related clients. The decision effectively affirms long-standing rules that bar lawyers from aiding clients in the commission of any “criminal” conduct.

In a September 2016 Arizona Capitol Times article by Howard Fisher on the subject, Maricopa County Attorney Bill Montgomery was quoted as stating that, given the federal prohibition on marijuana possession, notwithstanding Arizona’s Medical Marijuana laws, in his view, attorneys who help clients contravene federal law are involved in a “conspiracy” that would “make[] the attorney an accomplice.” This would suggest, that such attorneys, in Mr. Montgomery’s view, could be subject to prosecution.

Although it is difficult to speculate, the Sessions pronouncement could reasonably embolden local law enforcement officials, especially those who have already taken a public stance concerning attorney conduct supporting the medical marijuana industry. At the least, therefore, for this reason as well, the recent Department of Justice shift in footing could have a chilling effect on the industry, prescribed users, and lawyers alike.