Federal Court Clarifies Standard For Marijuana Caregivers Seeking Protection From DOJ Prosecution (Op-Ed)

“The Sirois decision underscores the challenges criminal defendants will confront in convincing federal district courts that they should issue an injunction against prosecutors.”

By Christine Baily, C Baily Law LLC

Caregivers and other participants in the medical cannabis industry have long accepted the risk of federal prosecution, even if their activities are legal under state law. While this risk has been mitigated by the annual passage of an appropriations rider that restricts the United States Department of Justice from using federal funds to prevent states from implementing their own laws authorizing the use, distribution, possession or cultivation of medical marijuana—aka the Rohrabacher–Farr amendment—the risk remains.

In a decision this week, U.S. v. Sirois, the U.S. Court of Appeals for the First Circuit clarified for the first time how criminal defendants could potentially convince a trial court to issue an injunction against prosecutors, essentially halting a prosecution for violations of the Controlled Substances Act (CSA).

The First Circuit’s decision, however, underscores the complexities that criminal defendants will confront in avoiding prosecution.

In the Sirois decision, the First Circuit considered an appeal by two individuals licensed as caregivers by the Maine Office of Cannabis Policy, who were subsequently charged with alleged CSA violations. It reaffirmed its previous ruling that criminal defendants can rely on the Rohrabacher–Farr amendment to request an injunction against prosecutors pursuing CSA violations—but the court stated for the first time that the defendants must show that it was more likely than not that they were in substantial compliance with state medical marijuana laws and regulations.

The First Circuit rejected the argument that the defendants needed to demonstrate strict compliance, the standard purportedly adopted in a prior case by the Ninth Circuit. Additionally, the court ruled that they could not be prosecuted for technical violations alone. Because the prosecution also alleged that they violated state medical marijuana laws and regulations, the First Circuit required that the defendants show that it was more likely than not that they did not participate in activity prohibited under these laws and regulations.

Ultimately, the First Circuit found that the defendants were not entitled to relief because they did not demonstrate substantial compliance with state laws and regulations nor address the prosecution’s evidence of their participation in a caregiver cooperative, which was illegal under state law, or evidence of their violations of drug trafficking laws.

The Sirois decision underscores the challenges criminal defendants will confront in convincing federal district courts that they should issue an injunction against prosecutors.

To start, criminal defendants must demonstrate substantial compliance with state medical marijuana laws and regulations, but possession of a license alone will likely be insufficient.

Relatedly, it is unlikely that state regulators will testify or provide evidence supporting compliance even if the agency issued, renewed or reinstated a license or determined that the licensee passed inspection during the time of the alleged CSA violations.

Moreover, criminal defendants will need to address and potentially refute the prosecution’s evidence of state violations at an early pre-trial hearing, which can be challenging without adequate time to review evidence provided by the prosecution and to gather evidence in their defense.

Lastly, only two Circuit Courts—the First Circuit, which includes the Districts of Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island, and the Ninth Circuit, which includes the Districts of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Northern Mariana Islands—have recognized these requests for relief, although several federal district courts have discussed these decisions.

In other federal circuits, criminal defendants will need to overcome the additional obstacle of convincing the federal district court to consider their request for an injunction.

Given the challenges identified in the Sirois decision, criminal defendants facing prosecution related to state-legalized medical cannabis activities should consult counsel to evaluate whether seeking an injunction against prosecutors is a viable option.

The First Circuit’s decision underscores the complexities involved in proving substantial compliance with state laws and regulations, addressing the prosecution’s evidence and navigating the differing approaches of federal circuits. By understanding these challenges, defendants can better assess their chances of obtaining relief and make informed decisions about their legal strategies.

Christine Baily focuses on providing personalized legal advice to businesses and individuals operating in regulated industries. As the first general counsel of the Massachusetts Cannabis Control Commission, she played a critical role in shaping the state’s cannabis industry. Today, Christine manages her own firm, C Baily Law LLC, where she helps clients obtain government approvals, ensure compliance with regulatory requirements, defend against investigations and disciplinary actions and challenge governmental actions in federal and state courts. She is licensed to practice law in Maine, Massachusetts and Connecticut. She can be reached at christine@cbailylaw.com or through LinkedIn.

This article is for informational purposes only and does not constitute legal advice. The information provided is not intended to replace professional legal counsel. Please consult with an attorney to discuss your specific legal needs and circumstances.

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