In the early stages of the Trump Administration, Attorney General Jeff Sessions signaled that the Department of Justice (DOJ) would continue to follow policies set for federal cannabis enforcement under the Obama Administration. The “Cole memo,” authored by former Attorney General James M. Cole in 2013, set federal law enforcement policy regarding marijuana. While acknowledging that marijuana is still illegal under federal law, the memo, in effect, carved out prosecutorial exceptions in states with legal recreational and medical marijuana programs.
However, in January, the DOJ announced that it was rescinding the Cole memo (and all other previous guidance documents regarding federal marijuana enforcement). The new memo from Sessions directs U.S. attorneys to use their discretion and follow the “principles that govern all federal prosecutions.”
While U.S. attorneys had the discretion to prosecute under the Cole memo, the memo from Sessions removed the guidelines that framed that discretionary power as it related to violations of the Controlled Substances Act.
This “return to the rule of law,” as the DOJ put it, has sent a new wave of anxiety throughout the cannabis industry. Several U.S. attorneys in states with recreational and medical marijuana programs issued powerful statements indicating they would continue to operate according to the guidelines set in the Cole memo.
Oregon’s U.S. attorney, Billy Williams, issued a vague comment on the memo. It is unclear from his statement, how federal prosecutors in Oregon will respond. In 2016, Williams’ office went after a Native American teenager, Devontre Thomas, for Thomas’ alleged possession of a gram of marijuana. It was the first cannabis prosecution in three years.
Prosecutors eventually dropped the charges against Thomas. On January 12 of this year, Williams wrote that he has “significant concerns about [Oregon’s] current regulatory framework and the resources allocated to policing marijuana in Oregon.”
“Rule of law” and “states’ rights” have long-served the rightwing as politically charged tropes, invoked to advance deeply ideological goals. As to the “rule of law,” the term is generally used to justify a belief in the meaning of a law (whether that belief is supported by the courts or not) or to describe a theocratic vision of society desired by many on the right. Those who invoke the term do so either disingenuously or with an arrogance that only they (and their supporters) know what the law really is.
Some use the phrase as a reference for divine law, as in the case of Roy Moore. Some use the terms to describe what they think the law should be, as in the case of Joe Arpaio. Unsurprisingly, many who invoke the phrase act as if certain laws don’t apply to them. Moore and Arpaio make constant reference to the “rule of law,” but both were found to violate the law several times. Yet, somehow, their violations of the law were not considered by Moore, Arpaio or their supporters to be real violations of the law. Of course, this kind of double-speak and hypocrisy is no surprise.
When it comes to policies they don’t like, the right conveniently forgets its impassioned pleas to respect states’ rights or the rule of law. Historically, the right has used “states’ rights” and the 10th Amendment to resist extending civil rights to historically disenfranchised groups, to block environmental protections and to thwart health care reform. They conveniently forget their impassioned arguments when it comes to issues like consumer protection, mass surveillance and, of course, marijuana.
Several journalists and scholars have pointed out the contradictions of the right, but simply “speaking truth to power” and publically pointing out these contradictions has not stymied their usefulness for the right. Officials in the Trump Administration regularly deny that they have said/done one thing or the other when there is clear evidence to the contrary. They, and their supporters, for whatever reason, just don’t seem to care.
But, there is no reason the favored “rule of law” and states’ rights concepts could not be employed beyond the reactionary agenda of the right. As federal environmental protections are rolled back every day by the Trump administration, communities could consider how to leverage states’ rights arguments for local control and the prevention of environmentally destructive practices. The “rule of law” argument could also be employed to demand state, local and federal officials respect federal environmental laws. When it comes to civil rights violations, we could insist that police and other government officials follow the “rule of law.”
Now, for marijuana producers, processors, retailers, patients and consumers in Oregon, there are a few things everyone can do if the feds do come knocking (we’ll save the question of how the DEA could possibly fund enforcement and prosecutions for low-level “offenders” for another day. Hint: civil asset forfeiture). At the most basic level, we can all assert our constitutional rights. Even (or especially) if you have “nothing to hide,” it is important to exercise your rights. Also, in the event you get charged after asserting your rights, prosecutors cannot use your invocation of your rights against you in court to imply guilt. So, if you’re scared you might “look guilty” if you exercise your rights, don’t be. Although cops may have a job to do, as participants in this society, we also have a job to ensure that the limited protections we have against state incursion into our lives remain intact. With that said, if you think you might be a target of a federal investigation:
- Do not consent to any searches. This does not mean that you get to physically resist a search. You have a Fourth Amendment right to be free from unreasonable searches and seizures. The easiest way for law enforcement to search you, your stuff, your house or your business, is to get your consent. You do not have to give consent and, despite what law enforcement may tell you, you cannot be punished for withholding your consent. If you don’t refuse consent, you waive any potential defense you may have if it turns out what the cops did was unlawful — you just made the search legal by consenting to it.
- Assert your right to remain silent. If you are the target of a federal marijuana enforcement action, nothing — literally, nothing — you say to law enforcement can help you. It can only hurt you.
- If you are approached by law enforcement officers who “just want to ask you a few questions,” you can ask whether you are being detained. If you are not being detained, tell them you don’t want to talk with them and walk away, shut the door, etc. If you are represented by an attorney, you can tell them to direct any questions they may have to that attorney. If you are being detained, first ask “Why?” — know the basis for your detention. At this stage, we generally recommend that you give your name, DOB and address. Next, assert your Fourth Amendment right (“I don’t consent to any searches”), then your Fifth Amendment right (“I’m invoking my right to remain silent”) and then demand an attorney.
- If you receive a federal grand jury subpoena, contact an attorney immediately and shine some light on what the feds are doing by informing your community that you have been subpoenaed.
- If you are the driver of a vehicle and you’re pulled over, first (if the officer/agent doesn’t tell you) ask why you’re being pulled over. You will need to give them your license, insurance and vehicle registration. You are under no obligation to say anything else at this point and we advise that you then exercise your Fourth and Fifth Amendment rights. You may be required to step out of the vehicle. You may be required to submit to field sobriety tests (if you don’t, you could lose your license). If law enforcement attempts to coerce your consent by threatening to call a K-9 unit, maintain your refusal to consent. Law enforcement can only stop you for as long as it takes to investigate the crime they suspect you of committing. Don’t keep weed and/or paraphernalia within your “wingspan,” don’t smell like weed, and don’t drive stoned — it’s just as illegal as driving drunk.
And remember, awareness is two steps forward, paranoia is two steps backward. You must know your rights to exercise them. Check out the CLDC websites for upcoming know your rights trainings, videos and other resources: cldc.org. If your group wants to host a training, give us a call at 541-687-9180 or shoot us an email at firstname.lastname@example.org.