'Dracula Clause' Protects Arizona's Medical Cannabis Users From Sessions | Phoenix New Times

'Dracula Clause' Protects AZ's Medical Cannabis Consumers No Matter What Sessions Does

Arizona patients could still possess and grow cannabis even if Sessions shuts down dispensaries.
U.S. Attorney General Jeff Sessions could create chaos with federal enforcement, but he can't take away your state right to possess or even grow medical marijuana.
U.S. Attorney General Jeff Sessions could create chaos with federal enforcement, but he can't take away your state right to possess or even grow medical marijuana. Gleti/shutterstock.com
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Stay strong, Arizona medical-marijuana patients.

U.S. Attorney General Jeff Sessions and local authorities have little power to stop you from consuming, possessing, or even growing cannabis under state law.

The 2010 Arizona Medical Marijuana Act contains a sort of "Dracula clause": If freedom-hating prohibitionists try to kill it, it will come back to life and bite them.

Sessions on Thursday rescinded the Obama-era actions that gave rise to the modern, state-legal marijuana industry, the so-called Cole and Ogden memos.

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U.S. Attorney General Jeff Sessions
Ray Stern
In theory, the new non-guidance to top federal prosecutors (the state U.S. attorneys) grants them more leeway to pursue enforcement actions against cannabis companies that are complying with their state laws. Medical-marijuana companies would be immune from this enforcement — but only for another month, if Congress fails to extend a key law banning funds from being spent on such enforcement.

As Phoenix New Times and other media outlets reported Thursday, the anticipated shift in policy has sent a chill throughout the multibillion-dollar industry. Operators and investors with the state's 130 or so dispensaries must wait to see how it all shakes out.

But for authorized Arizona patients, the result of a draconian crackdown on the companies is more predictable, given the text of the state law.

If the state stops issuing medical-marijuana cards, Arizona patients — who now number about 160,000 — could still possess and consume cannabis by obtaining a doctor's note. The state would no longer regulate the program and would not collect its $150 fee.

Selling cannabis to patients would be a state crime, since only dispensaries can legally do that under the 2010 law. But the state law says that patients can grow up to 12 plants each if no dispensary is operating within 25 miles.

With no dispensaries and unrestrained cultivation by patients, the black market for cannabis would be bigger than ever before. Tens of thousands of patients who need cannabis would begin to immediately seek out an alternative to dispensaries, if those businesses were shut down. Clearly, they would be soon served by an army of suddenly unemployed, highly skilled, and experienced growers and sellers.

The revolution of legal cannabis would march on.

The feds could try to stop the chaotic freedom, but they simply don't have the resources to go after patients and small-time growers.

As former Maricopa County Sheriff Joe Arpaio used to complain, the policy at the Arizona U.S. Attorney's Office for years has been to prosecute only the (non-border-trafficking) cannabis cases that involve more than 500 pounds. Typically, the only time that federal authorities bust average folks for minor possession cases, as New Times has found in court records, is when rangers catch someone with cannabis in federal parks.

Ryan Hurley, general counsel for Copperstate Farms, one of the largest cannabis growers in the state, said that he's concerned about Sessions rescinding the Obama protections, but doesn't believe the Arizona medical program will be targeted.

"Worst of all" for the prohibitionists, he said, is the possible scenario of unregulated patients and home-growers that would arise if the federal government knocked out the dispensaries.

The number of patients in an unregulated system might approach the estimated 600,000 people who consume cannabis in Arizona, whether for medicinal reasons or not, he predicted.

"Anyone could walk around with a note in their pocket" and enjoy protection from state prosecution for low-level possession and cultivation, Hurley said.

Other states where voters have legalized cannabis, like Colorado and California, would also retain their basic protections for patients and recreational consumers, he added.

"It would be very difficult, if not impossible, to put the genie back in the bottle," he said. "People would rise up."

The cannabis landscape is vastly different than it was just 10 years ago in Arizona, when everyone was subject to felony prosecution for possession of any amount of cannabis. Patients have state voters, Obama, and Congress to thank for the current protections.

Legal cannabis will go down as one of Obama's most enduring legacies since his administration changed the paradigm in 2009. That year, in response to medical-marijuana laws in California, Colorado, and other states, deputy AG David Ogden sent a memo to all the U.S. Attorneys that effectively ended strict anti-cannabis enforcement by the feds.

"As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana," the memo read.

In November 2010, Arizona voters approved Prop 203, the Medical Marijuana Act, by just 4,341 votes. Because the Act was a ballot proposition, it can't be altered by the Arizona Legislature without a three-fourths majority vote, and even then the change must further the Act's purpose.

The Marijuana Policy Project, which put the Act on the ballot, predicted that anti-freedom lawmakers or bureaucrats might try to interfere with the law's implementation and added the Dracula clause. That section is now enshrined in Arizona Revised Statute 36-2818, which says that if the state Department of Health Services "is not accepting applications" for medical-marijuana cards, patients can simply jot down on a sheet of paper their ailment and other information now in official applications, get it notarized, and obtain a doctor's written certification.

The two documents together "shall be deemed a valid registry identification card," the law states.

Deputy AG James Cole issued another memo in 2013 that generally shielded states' medical-marijuana programs and also paved the way for the groundbreaking adult-use laws of Colorado and Washington in 2012.

Congress granted strong protection to medical-marijuana programs in 2014 by passing the Rohrabacher-Farr amendment, which bans the feds from spending money on enforcement operations against the programs. Now known as the Rohrabacher-Blumenauer Amendment, the law was reapproved and ultimately upheld by the U.S. Ninth Circuit Court of Appeals. It's currently set to expire on January 19.

Arizona's law also enjoys protection from the state court system, with several rulings that deny the law is in conflict with federal law, reasoning that the state can choose on its own whether or not to enforce cannabis prohibition.

Federal authorities wouldn't need to send jackboots into the dispensaries to shut down the industry. A few strongly worded letters threatening seizure of assets and property would do the trick. But U.S. Attorneys have some discretion and could decide not to go along with any planned crackdown by Sessions. On Thursday, Acting Colorado U.S. Attorney Bob Troyer, an Obama appointee, announced that he wouldn't change his current approach to cannabis enforcement — which includes allowing Colorado stores to sell cannabis to anyone 21 or older. However, Trump could replace Troyer.

The Trump administration still hasn't assigned Arizona a permanent U.S. Attorney since John Leonardo, also an Obama appointee, resigned after Trump's election. That means it's unknown whether Arizona's new federal prosecutor — whoever it will be — will try to shut down the state dispensary program.

Asked for comment about Sessions' move, the Arizona U.S. Attorney's Office, headed up by acting Arizona U.S. Attorney Elizabeth Strange, released the following, somewhat cryptic, statement: "Our office is committed to the enforcement of federal law and does not have anything to add to the Attorney General's announcement at this time."

If the new Arizona federal prosecutor chooses to take down the dispensary industry, it would cause financial pain for the state as thousands of people lost their jobs, and as an industry worth hundreds of millions of dollars in economic activity went up in smoke. Investors and dispensary operators would be out of luck.

Arizona's 160,000 patients would find it tougher to buy cannabis products, especially the products they've come to use regularly, whether that be a specific flower strain, edible, or concentrate. The feds might even try to prosecute a few average patients or growers as an example, although such actions would be very limited due to federal priorities.

For the most part, patients' basic right to possess up to 2.5 ounces of cannabis would not be infringed. They'd just have to find their own green thumb and grow their own — or locate one of the thousands of home growers or black-market dealers willing to help them.
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