WASHINGTON, D.C. — A new dispute in the nation’s Capitol over the right of police to confiscate marijuana demonstrates the likelihood of more policy conflicts in Colorado and elsewhere, according to legal experts.
The controversy focuses on different enforcement standards between state laws that make marijuana possession legal and federal law that makes possession illegal.
“I think the big question here is the extent to which the federal government is going to interfere with Colorado’s regulatory regime, where you have both legal medical and recreational marijuana,” said Paul Campos, a constitutional law professor at the University of Colorado in Boulder. “If there’s a conflict, federal law overrides state law.”
The latest disagreement resulted from activists passing out marijuana cigarettes to staff members of the U.S. Congress in Washington, D.C. on April 20.
The activists stood a few feet off the property of the U.S. Capitol but still in the District of Columbia, where possession of small amounts of marijuana is legal.
The U.S. Capitol Police — a federal police force — arrested the activists and confiscated their marijuana. Local prosecutors declined to press charges against them.
One of the activists is considering suing the U.S. Capitol Police as soon as this week to compel them to return her marijuana. The Capitol Police have refused, saying their policies are governed by a federal law that gives them a right to destroy the marijuana.
Under local law in the District of Columbia, police return much of the marijuana they confiscate, unless it proves criminal conduct.
The lawsuit in Washington is likely to be filed in federal court, where a judgment could apply to cases nationwide, according to the attorney representing the plaintiff.
It comes at a time of threatening rhetoric from U.S. Attorney General Jeff Sessions, who this month said he wants Congress to allow federal prosecutors to go after legal medical marijuana providers.
Colorado Gov. John Hickenlooper (D) and members of the state’s congressional delegation responded by saying they did not want federal intervention in their medical marijuana policies.
Campos said Colorado and the other 20 states that decriminalized some uses of marijuana might have little choice.
“This is just a purely political question,” he said. “There’s no question about whether [the federal government has] a legal right to do that. It’s a policy question of are they going to do it.”
Evan Parke, the attorney for the woman who is suing the U.S. Capitol Police, said different laws and opinions among the states and federal government about marijuana means the U.S. Supreme Court might try to clear up the confusion.
“In that sort of situation, the Supreme Court is more likely to pick it up,” Parke said.
A federal versus state dispute compelled the Colorado Supreme Court to rule in January that local police should keep and destroy confiscated marijuana. Returning it would make the police “distributors” of a controlled substance, thereby violating federal law, the state Supreme Court ruling said.
Before the ruling, Colorado police departments returned much of the marijuana they seized.
The Colorado Supreme Court noted the conflicts between state and federal law in its judgment that said, “The two (laws) cannot consistently stand together. This court has held that an act is ‘lawful’ only if it complies with both state and federal law. Here, the officers could not be ‘lawfully engaged’ in law enforcement activities given that such conduct would violate federal law.”
The Colorado lawsuit resulted from the 2011 arrest by Colorado Springs police of Robert Crouse for cultivating and possessing marijuana. Police seized 55 marijuana plants from his home, which was more than the legal limit of 30 plants in Colorado.
A jury acquitted Crouse after he demonstrated he was a registered medical marijuana patient. Afterward, he invoked a state law allowing return of marijuana to owners if they are acquitted of crimes.
Prosecutors blocked the return of the marijuana, citing the federal Controlled Substances Act.
Alan K. Chen, a professor at the University of Denver’s Sturm College of Law, said avoiding conflicts like the Crouse case is likely to require congressional intervention.
“As long as Congress continues to criminalize marijuana, there is no question that the federal government may enforce those laws, even in states where marijuana has been decriminalized,” Chen said.
Under current laws, flip-flops on enforcement are likely, he said.
The Obama administration allowed states to decide their own marijuana laws and how to enforce them, Chen said.
“Attorney General Sessions has made it clear that he does not agree with that policy, presenting the possibility for additional conflicts to arise,” he said.
Meanwhile, Colorado police departments plan to follow the January state Supreme Court ruling unless there is a change in the law.
A Feb. 23 Denver Police Department training bulletin told officers, “Effective immediately there will be no further release of personal property marijuana to the public. Officers submitting marijuana to the Property Section should be aware that it will be destroyed and not returned to the owner.”
The Aurora Police Department is following a similar policy.
“It is not the Aurora Police Department’s practice to release marijuana or marijuana paraphernalia back to the owner because the police department would then be dispensing a controlled substance that is considered to be illegal under federal law,” said police spokesman Bill Hummel.