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BY MITCHELL S. BISSON, ESQ. MANAGING ATTORNEY CALLISTER LAW GROUP
The “Cannab-Esq.” Chronicles A Legal Perspective for Cannabis Consumers
Right as the magazine racks at southern Nevada’s dispensaries were getting loaded up with January’s issue of Vegas Cannabis Magazine – wherein I attempted to invite United States Attorney General Jeff Sessions to take a few dabs of Hyve’s Sweet Diesel live resin batter with me – Sessions dropped the bomb. As I suspected, Sessions announced on January 4, 2018 that he was rescinding the Cole and Ogden Memorandums, which states like Nevada have been following for guidance on how to implement marijuana laws without federal intervention. The announcement by the Department of Justice provides that, moving forward, the U.S. Attorney for each state will be given discretion when to enforce current federal law as it relates to marijuana. Specifically, the announcement states: Indecidingwhichmarijuanaactivitiestoprosecuteundertheselawswith the Departments finite resources, prosecutors should follow the wellestablished principles that govern all federal prosecutions. […] Given the Department’s well-established general principles, previous nationwide guidance specific to marijuana enforcement is unnecessary and is rescinded, effective immediately.
While some U.S. Attorneys around the nation have already come out and stated that they do not intend to interfere with their respective state’s marijuana programs, the U.S. Attorney for Nevada, Dayle Elieson, has thus far remained silent on this issue. The fact that Sessions just appointed her to serve in this capacity a few days before he announced the rescission of the Memorandums may be an indication that she was selected for a particular purpose. Let’s hope this is not the case. There is no doubt the actions of Sessions and the Department of Justice have the potential to cause uncertainty and unrest in the marketplace – lenders could be less likely to fund loans and businesses more hesitant to dedicate large sums of money with the threat of federal drug charges hanging out there. The rescission of the Memorandums could also have far-reaching effects for consumers. With the Memorandums in place, consumers of cannabis – especially medical marijuana cardholders – were pretty safe in their cannabis endeavors. But now that Sessions has decided to rain down on cannabis consumers’ parade, the risks associated with involving oneself with marijuana are increased. The pre-Cole Memorandum horror stories some of my clients have experienced are nothing to ignore. For example, a few years ago I had a young husband and wife who were forced to retain me after LVMPD raided their home one morning in a SWAT-like takedown for having ten marijuana plants growing in their home. Of course, my clients had medical marijuana cards, but that didn’t stop the officers from methodically removing and smashing all of my client’s grow
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equipment on the sidewalk. And while the charges against my clients were ultimately dropped, the damage had already been done to their equipment. I have also been hired by a gentleman who was arrested in California on federal marijuana charges filed here in Las Vegas only to be effectively forgotten in jail for 355 days. Yes, you read that right. Once transferred to the federal detention facility in Pahrump, my client was placed into solitary confinement for almost an entire year without ever being brought in front of a judge or given access to an attorney – for a marijuana charge! The charges were ultimately dropped in this case as well, however my client lost a whole year of his life for being in the wrong place at the wrong time and having some weed in his possession. I’m not relaying these stories to scare you, but rather to highlight the real disconnect between state and federal marijuana laws. Both stories I gave involved state-legal medical marijuana cardholders, yet they had their worlds turned upside down by the federal government. With the Cole and Ogden Memorandums in effect, there was some semblance of organization and guidance on how to avoid federal scrutiny. Sessions did away with that. But alas, there may be a silver lining! Sessions rescission of the Memorandums may be exactly what is needed for permanent change to occur. Session’s announcement puts the ball directly in Congress’s court to put forth legislation that de-classifies marijuana as a Schedule I drug under the Controlled Substances Act (CSA). In fact, Sessions pointedly stated in his memorandum that the CSA reflects “Congress’s determination that marijuana is a dangerous drug and that marijuana activity is a serious crime.” Almost immediately after Session’s announcement, many state leaders and members of Congress spoke out against the move and promised to take action. However, until this actually happens, and until marijuana is no longer classified alongside heroin and methamphetamine, there will continue to be an enormous amount of uncertainty and anxiety in the marijuana industry nationwide. In any event, I have no doubt the State of Nevada is going to push forward with both its medical and recreational marijuana programs despite Session’s stance. After all, Nevada has never had a problem being on the forefront, and our marijuana industry is top notch. And although local officials have decided to hold off on their plans to start approving marijuana lounges for now, I still believe with enough community support and a little poking and prodding, officials will be forced to tackle the issue before year’s end! Oh, and before partaking in any cannabis transaction/ consumption whether you are a medical cardholder or not, please remember it is still a violation of federal law…so make sure the feds aren’t watchin’! Stay safe, stay legal, and #StayWoke!