'MEDICAL' MARIJUANA PUTS AGENCY IN BIND

Those who choose to use, grow or sell marijuana under Arizona's
"medical" marijuana law might not care that they are violating
federal law. On the other hand, Arizona Department of Health Services
employees who implement these laws very well might care that they are
violating federal law, but they are faced with a dilemma.

Arizona's "medical" marijuana law, which squeaked by with 50.1
percent of the vote last November, contains provisions that will
force law-abiding citizens, people who have never touched an illegal
drug in their lives, to violate federal drug laws. ADHS employees are
in a lose/lose situation.

They can either obey state law and risk federal prosecution or obey
federal law and risk losing their jobs.

Back in 2009, Deputy U.S. Attorney General David Ogden issued a
memorandum stating it would not be a Justice Department priority to
go after individuals using pot under state laws allowing for the
"medical" use of marijuana. Many marijuana advocates believed this
meant the Obama administration would take a hands-off approach in
states with these laws.

In fact, Ogden merely said prosecuting the users is not a priority.
However, prosecuting those who grow and sell marijuana is still a
high priority. He further said that states can't authorize violations
of federal law and can't provide protection from federal prosecution.
Recent DEA raids on marijuana dispensaries in Montana, California and
Colorado confirm that marijuana advocates misinterpreted the Ogden memorandum.

The Justice Department has been consistent on this issue. The Ogden
memorandum recently was clarified by Melinda Haag, U.S. attorney for
the Northern District of California, in response to a proposal by the
Oakland City Council to license marijuana growers and dispensaries.

Haag said those who grow and sell marijuana would be prosecuted, even
if they have licenses from the city of Oakland. And she said others
"who facilitate the actions of the licensees, including property
owners, landlords and financiers, should also know that their conduct
violates federal law." That federal law is the Controlled Substances
Act, which makes it illegal for anyone to use, possess, grow or
dispense marijuana or to help anyone else commit any of those acts.

So, what about ADHS employees who hand out marijuana cards, inspect
dispensaries, or perform other acts that will allow the use,
possession, cultivation or distribution of marijuana? Are they
violating federal law? Are they aiding and abetting violations of the
Controlled Substances Act and therefore guilty, themselves? The
answer is important because those who violate the Controlled
Substances Act can be fined or be imprisoned for up to five years.

In Gonzales vs. Raich, the U.S. Supreme Court made clear that state
"medical" marijuana laws are no defense against federal prosecution.

The Bush administration certainly believed state employees could be
prosecuted for violating the Controlled Substances Act. In 2007, the
administration warned New Mexico's governor that state officials
could be prosecuted for implementing their "medical" marijuana law.
For a legal analysis confirming the risk for state employees, see the
memorandum posted at KeepAZDrugFree.com (click on "News").

This puts ADHS employees in a terrible bind. If they carry out their
duties under state law, they're breaking federal law and could be
fined or go to prison. But if they refuse to violate federal law,
they're breaking state law and could lose their jobs.

The Ogden memorandum provides no safe harbor. At best, it suggests
that, because of limited resources, the Obama administration might
not prosecute ADHS employees. Think about that. So, it's OK to force
ADHS employees to violate the law if the odds of prosecution are
small? When did the rule of law become dependent upon resources to prosecute?

The point is that implementing state "medical" marijuana laws is a
violation of federal law, whether or not it is prosecuted. ADHS
employees should have the right to remain law-abiding citizens
without running the risk of losing their jobs. Besides, what happens
when this administration, or the next one, decides to prosecute these crimes?

Who is advising ADHS employees of their rights and responsibilities,
and where are our elected leaders on this issue? It is not fair for
ADHS employees to be impaled on the horns of this dilemma.