Damn Supremacy Clause!

After federal agents raided 26 medical marijuana facilities around Montana in March 2011, some caregivers, who found themselves potentially facing federal drug charges even though they were operating under state law, went on the offensive. They sued the federal government, claiming the raids had violated their constitutional rights. They hoped to find a crack in federal authority that would allow them to use Montana's medical marijuana law as a defense.

On Jan. 20, U.S. District Judge Donald Molloy, of Missoula, ruled that there's no such crack, dismissing the case altogether. He bluntly wrote: "We are all bound by federal law, like it or not."

In his order, Molloy addressed the Ogden Memo, the document issued in October 2009 by U.S. Deputy Attorney General David Ogden, which emphasized that prosecuting marijuana traffickers continued to be a "core priority" but that pursuing them should not focus resources "on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." That memo catalyzed Montana's medical marijuana industry, leading many to believe the days of federal raids were over. The number of patients on the state's rolls would top 30,000 by the middle of 2011.

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But, Molloy wrote, "A reasonable person, having read the entirety of the Ogden Memo, could not conclude that the federal government was somehow authorizing the production and consumption of marijuana for medical purposes. Any suggestion to the contrary defies the plain language of the memo."

Among the arguments made by the plaintiffs, which included the Montana Caregivers Association and MCM Caregivers, was that the searches and seizures were unreasonable—a violation of the Fourth Amendment—because federal authorities failed to acknowledge that the plaintiffs were acting legally under Montana law.

"Whether the plaintiffs' conduct was legal under Montana law is of little significance here," Molloy wrote, "since the alleged conduct clearly violates federal law."

The plaintiff's attorney, Carl Jensen, of Great Falls, says the decision has implications for any medical marijuana patient in any state. And, of course, for his clients, who could face decades in prison if convicted of federal charges.

"I was hopeful that they'd...have a look at whether there [are] at least some rational limits to federal authority," Jensen says, "but at least Judge Molloy doesn't think so."

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