DEA Disregards Obama and Holder on Medical Marijuana
9 News in Denver was doing an investigative report on marijuana growing in the suburbs. A marijuana patient named Chris Bartkowicz who lives in a $600,000 home volunteered to participate. He said he wanted to show how marijuana growing could be done legally. He gave the news team a tour of his basement which had 2,000 square feet of growing plants. He showed them licenses and the licenses of those to whom he provided marijuana (Under Colorado's Constitution, every patient can have six plants, and patients can designate a caregiver to provide the plants to them. So a caregiver with 100 patients can grow 600 plants.)
The station ran a "tease" of the report Wednesday night. Yesterday, the DEA paid Bartkowicz a visit and took away all his plants and equipment.
Last night, after the Olympics, 9 News had the head of Denver's DEA on to explain the bust. DEA Agent Jeffrey Sweetin said he had no doubt Bartkowicz thought what he was doing was legal, but it's illegal under federal law and until federal law changes, DEA is going to continue making busts.
Nothing in federal law has changed. Wanting federal law to be different is not a great strategy....We will continue to enforce federal law, that's what we're paid to do, until the federal law changes.The only exception to that is discretion and department guidance."
But, wait, didn't Attorney General Eric Holder, with approval of President Obama, issue an official memorandum (pdf) last October saying they would not prosecute medical marijuana cases that were in compliance with state law? Yes. Did the memo exempt "big" grows or dispensaries? No.
But here's Sweetin tonight on dispensaries:
I just got off the phone with a Denver Post reporter who said, "Well, you're certainly not going after dispensaries" to which I answered, "Who said I'm not?"
So what is Sweetin saying? Besides thumbing his nose at Obama and Holder, he's saying DEA, which is an agency within the Department of Justice, can go rogue and disobey DOJ policy.
So what happens now? If Bartkowicz was legal under state law -- if the total amount of plants he had did not exceed 6 times the number of persons who had designated him as a caregiver, the U.S. Attorney's office should decline to prosecute.
If he had more than the allowed number of plants, or if the U.S. Attorney's office also decides to go rogue, Bartkowicz is going to face criminal charges, and the feds will try and forfeit his $600,000. home.
According to the Denver Post, Bartkowicz said he would make between $100,000 and $400,000 a year growing marijuana.
One has to question why Bartkowicz decided to publicize his business. But the story here isn't him, as much as it the DEA's blatant disrespect for DOJ policy. It would be one thing if Sweetin had said Bartkowicz was wrong about being in compliance with state law, and because he wasn't in compliance, DEA moved in. But he didn't say that. He clearly said the DEA doesn't care about compliance with state law -- particularly if the grow is big. They are there to enforce federal law and growing marijuana is illegal under federal law.
DEA says they will destroy Bartkowicz's plants regardless of whether charges are filed. Can they do that without being liable for the value of the plants? State law enforcement has been held liable for wrongful seizure of plants. The answer is probably yes, because DOJ policy is not law and is not enforceable by the courts under the Petit policy.(Federal courts have held that a criminal defendant can not invoke the Department's policy as a bar to federal prosecution.)
So again, while Sweetin is accurately stating the law, he's thumbing his nose at Obama and Holder and official DOJ policy. Will that get him fired? Probably not, which should be a sign of how little commitment the Obama Administration really has towards medical marijuana and state laws that allow it. All the more reason for Congress to pass a law disallowing prosecution of medical marijuana patients and providers who are in compliance with state law -- or at least allowing them to raise compliance as an affirmative defense.
Bartkowicz has stopped giving interviews. A decision on charges may come Tuesday.
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