J.P. List
4/9/2015

As of January 1 2014 recreational use, possession, and sale of marijuana is legal in the state of Colorado. That sounds simple enough. However, that is just the beginning of the issue. What does it mean to be legal? Is it legal like tobacco or like alcohol?
The answer is neither of these, but it is much closer to alcohol than it is to tobacco. Unlike tobacco, the restrictions on marijuana go much further than the lawful age of use, and some location based restrictions. There are definite parallels with alcohol regulations, but that is not a perfect analogy either. Marijuana laws in Colorado are still evolving. That is one of the features of a common law system, the legislature writes the law, but it is not truly clear what it means until courts get their hand on it. The courts certainly will get their hands on the laws in Colorado. In fact, they already have, though it is taking them quite a while to interpret some of the laws. In this post, I will explore the current state of the law in Colorado, and the potential future of legalization.

As of now Marijuana is treated much like alcohol, it is available to individuals over the legal age, and like hard alcohol in Colorado, it is only available in specific stores. Consumption is also regulated in many different ways. For example, it is illegal to smoke marijuana on the street, or in public places. It is legal to have two ounces on marijuana on you at any time. However, there is a limit to the amount of marijuana allowed in your system at a given time when driving. At this time that limit is five nanograms of THC per milliliter blood. One of the odd side effects of legalization is that before this, there was no clear limit of the acceptable amount of THC in the blood. Now, we all need to learn what five nanograms of THC per milliliter means on a practical level. Unfortunately, I do not have a good example of what this is like. The rules for concentration of THC in the blood are unclear in the work place. Part of this is due to the nature of legalization. While Colorado as a state has said that marijuana is legal, the federal government has kept marijuana on the list of controlled substances. The Supreme Court of Colorado has been grappling with this question in a case called Coats v. Dish Network.

Briefly, Mr. Coats, was a paraplegic with a prescription for medical marijuana to treat symptoms associated with his condition. Dish Network had made some accommodations for his condition, and Mr. Coats was recognized as a leading customer service agent. Dish Network has a drug use policy, which prohibits the use of marijuana. When he was randomly selected for drug testing, he failed. Due to the failed test, Mr. Coats was terminated. He challenged the termination based on the fact that he was not using marijuana at work, only at home, and employers are not allowed to dismiss an employee for lawful activities outside of work. This case will go a long way toward deciding how firmly entrenched legalization will be in Colorado.

Prior to legalization, failing a drug test had predictable consequences. You fail you are terminated. Under legalization, those determinations get much more complicated. For example, if you are tested, and found to have alcohol in your system at work, it is assumed that you have been drinking on the job, since alcohol does not stay in your system very long. Marijuana however stays in your system for a long time, so it is harder to determine from a test, if a person has been using at work.

Drug testing is a standard procedure after an accident at work, and given that THC stays in your system well after you have used, what weight is given a positive test for marijuana in a state where it is “legal” for recreational use? Complicating matters is that there while there are regulations covering the concentration of THC in recreational marijuana products, there are currently no uniform testing procedures. Different procedures can give widely varying results for concentrations of THC. As it stands, although marijuana is legal in Colorado you are still using at your own risk, because of potential legal consequences. This uncertainty goes beyond the use marijuana in connection with work; it applies to the future of legalization as a whole.

Threats to legalization in Colorado

Threats to legalization broadly can be classified in two categories, legal issues and political considerations.

Legal Threats
Right now Colorado is facing a number of legal challenges to the legalization of marijuana. There are three suits in federal court, and one that, will be heard by the US Supreme Court.
There are two suits that have been filed by residents of Colorado trying to block the changes brought on by amendment 64. Both of these suits claim burdens that are the result of the legalization of marijuana in the state. The plaintiffs are charging Governor Hickenlooper with violation of RICO laws by allowing marijuana to be legalized in Colorado, in violation of federal laws

One case claims that the construction of marijuana cultivation facility will destroy the value of private property because there will be an illegal facility built which might interfere with the views in one direction from the property. Another case filed by private citizens claims that the planned opening of a recreational marijuana dispensary in Frisco has already led to a loss of business revenue for a Holiday Inn next to the proposed facility. Both of these cases have a co-plaintiff Safe Streets, a DC based anti-legalization group. In order to be successful the plaintiffs must be able to show that they have suffered real definite harm that will be the hardest part of these suits.
Six Colorado sheriffs filed the third suit in federal court. They are claiming that the legalization of marijuana in the state has left the officers under their control in an untenable situation. Every time that an officer stops a person for possession of marijuana the officer needs to choose between enforcing the laws of the state of Colorado, or the federal laws which consider possession of any amount of marijuana to be a criminal act. If this claim sounds familiar, it is because it is the same as the claims surrounding enforcement of immigration policy. The response to this should be largely the same. Sheriffs are not charged with enforcing federal law, they are officers of the state, and enforce state law regardless of personal feelings.

The suit before the Supreme Court is brought by Nebraska, and Oklahoma. These states are claiming that they are suffering negative effects due to Colorado’s legalization of marijuana. Their claims center on a claimed increase of marijuana related arrests and trials in the areas adjacent to Colorado. The extra cost of these actions is a burden placed on them by Colorado resident’s decision to legalize marijuana for recreational use. The claims center on the Supremacy clause of the constitution, which prevents a state from making a law, which is contrary to federal law. Washington and Oregon have filed briefs on the side of Colorado. The Supreme Court has not decided if it will hear the case, but if it does, it will likely be in the next term. If the Court decides against Colorado, it will only effect the decriminalization of recreational marijuana, not the medical marijuana industry. Even if the Supreme Court says that legalization in Colorado does not violate the rights of neighboring states, there are political threats to legalization.

Political threats
Colorado and Washington are allowed to have legalized marijuana because the current administration has directed the Department of Justice to not enforce federal laws prohibiting the use, sale, or growing of marijuana. The next president may very well decide that they disagree with this policy, and return to enforcement of federal drug law. Even though this may not change Colorado’s constitution, it would effectively end legalization. As decriminalization efforts take hold in more states, and issues surrounding regulation are ironed out by Colorado and the other states that are on the forefront of this issue, it becomes increasingly likely that the federal government will continue to allow states to decide on their own how to handle marijuana. However, as long as marijuana is considered a controlled substance by the federal government, it is not truly legal.

This partial legality makes it difficult to do business in the industries of medical and recreational marijuana. Most business issues arise from the conflict with federal rules. Currently all marijuana cultivation, testing and retail facilities must be located in the state where the product is sold. This means that there are limited possibilities to leverage economies of scale. Interstate transportation of marijuana is illegal since the federal government controls the rules of interstate commerce.

It is also impossible for a business involved in the marijuana trade to deal with a bank. Banks are subject to federal regulations, which prevent them from taking deposits from businesses that are involved in the drug trade. This regulation prevents money laundering, and prevents illicit funds from entering into the legitimate economy, and in the case of banks in Colorado and Washington, it prevents legitimate marijuana related funds from entering into the banking system. This means that marijuana businesses have to be cash only operations, no credit cards, no debit cards, and no checks ( though, I am not sure how many people use checks anymore.) That much cash is cumbersome, it takes a lot of space, and it seriously raises the risks associated with doing business. Companies that grow, test or sell marijuana have to keep their profits, and savings in cash, which means that they need to spend a lot more money on security. Colorado has been exploring ways to allow marijuana related businesses to use some kind of banking services, but as of this writing there is no concrete solution in place.

So just how legal is marijuana in Colorado? The answer is, it is legal (mostly.) The next few years will clarify the answer to this question, but for now, it is legal at home, or in private, unless you get tested at work (maybe).

This is a blog post, and nothing contained herein constitutes legal advice.

 

UPDATE

7/4/2015

The Colorado Supreme Court has finally ruled on Coats v. Dish Network, 13 SC 394 (Colorado 2015)  Opinion of the Colorado Supreme Court .  The Court found that Dish Network has the right as a company to test for, and terminate employees for using marijuana, since it is still a federally controlled substance.  Because marijuana is a schedule one substance, the law preventing companies from interfering with lawful activities outside of work does not apply.

In the wake of a rash of highly publicized incidents where police action resulted in the death of individuals who were either not a threat, or already subdued; we are seeing equally highly publicized grand jury hearings determining whether to indict the police involved.  To the outrage of many, both inside and out of the local communities, more often than not, these grand juries returned “no true bill” meaning they refused to indict the officers for any wrongdoing.

How is this possible? We all have seen the videos, and in the court of public opinion, they are quite obviously guilty.  How can there be no trial?  We hear all the time “a prosecutor can get a grand jury to indict a ham sandwich” so obviously it must be the prosecutor’s fault, right?

If only it were that easy.  Let us look at what grand juries are first.  Grand juries are made up of a group of normal citizens, much like a regular jury.  Unlike a regular jury, a grand jury meets in secret, without a judge, and in many cases, the defendant is not present.  Grand juries are not there for anything like a trial, they are there to listen to incriminating evidence against the defendant to determine if there is probable cause for prosecution.  The prosecutor is in charge of the hearing, showing only one side of the case, trying to get an indictment.  The whole process is geared toward getting a defendant on trial, and in a typical grand jury scenario, only incriminating evidence is presented.  So why do so many grand juries not indict police?

The answer can be found by looking at the role of the prosecutor.  Normally a prosecutor is trying to get an indictment of a defendant brought to them by the police.  There is an inherent conflict when that defendant is the police.  , they work closely with the police force.  After all, how else are they going to handle investigations, and get defendants to indict?  If a prosecutor is perceived as going too aggressively after an indictment of a police officer that could poison the relationship and make the prosecutor’s life very difficult.  That is why in cases like Ferguson the prosecutor showed all of the evidence not merely the incriminating evidence (as would typically be the case in a grand jury hearing).  They can claim impartiality, while their inherent bias (in many cases likely a subconscious bias) makes it easier for the grand jury to return no true bill.

As long as there is this inherent conflict of interest in the system, we cannot expect a grand jury to indict the police as easily as the proverbial ham sandwich.

Thankfully, all of the publicity from these incidents has begun a movement to reform the system.  Currently, there are at least three proposals at the state and national level on how to handle the special task of indicting police officers more effectively.  The mere fact that it is recognized as a special task shows progress.

The Chief Judge of the State of New York, Jonathan Lippman in his State of the Judiciary speech proposed that in cases of homicide or felony assault involving police-civilian encounters a judge would preside over the grand jury hearing.  This would still have the prosecutor involved in the hearing, but the judge would be able to ask questions of the witnesses, and make rulings.  This helps to guard against the inherent biases of the prosecutor. The judge would then have the option to release the record of the grand jury deliberations in the event of a return of no true bill.  Right now grand jury records are sealed to protect the party who was not indicted.

In California, State Senator Holly Mitchell (D-Los Angeles) has proposed legislation, which would prohibit the use of grand juries in officer-involved shootings resulting in death of the suspect.  The elimination of grand juries in this legislation is to combat the secrecy of the process.  Presumably, as a result, these cases would result in a direct indictment and go directly to trial.

On a national level, there has also been a response to these events.  Rep. Hank Johnson, D-GA proposed legislation in December, which would keep much of the current grand jury structure in place.  However, in an effort to combat the inherent bias of the current system Rep Johnson has proposed that a special prosecutor be in charge of the grand jury in cases involving police officer misconduct.

These proposals are each a potential step in the right direction.  I hope that we can build sufficient momentum to fix the system.  I do not pretend to know the best means to do so, but it is clear change is necessary.  As surely, as we need to make sure that the criminal justice system is not the primary means of mental health care in the country. (This will be the topic of an upcoming post.)