Headshot of The Health Law Firm's attorney George F. Indest IIIBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In a federal case involving a California-based medical marijuana dispensary and the United States, regarding a motion to dissolve a permanent injunction, a federal judge challenged the Department of Justice’s (DOJ) so-called “tortured” interpretation of the law.  U.S. District Judge Charles Breyer pronounced that the DOJ’s interpretation is “at odds with fundamental notions of the rule of law.”  Judge Breyer went so far as to say that the DOJ’s analysis of the plain language Amendment was “counterintuitive and opportunistic.”

At issue in this case is a law passed last year by Congress which purposes to restrain the Justice Department’s efforts to prevent the implementation and use of medical marijuana in states where it has been legalized.  The applicable portion of the federal law in dispute is Section 538 of the 2015 Appropriations Act (otherwise known as the “Rohrabacher-Farr Amendment”).  The Amendment states that the DOJ is barred from using federal funds to “prevent such States [where medical cannabis has been legalized] from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”

The federal court decision found that the DOJ incorrectly interpreted the federal law to mean that it cannot prosecute the state itself for implementing mandates authorizing the use of marijuana for medicinal purposes but that it could still prosecute individuals and businesses carrying out state mandates or operating within state law.

To read the order of the court regarding briefing and hearing in United States of America v. Marin Alliance for Medical Marijuana and Lynette Shaw, click here.

DOJ Issues “Cole Memo” to Clarify.

Former Deputy Attorney General James Cole wrote a memo to all U.S. attorneys stating that the DOJ would exercise prosecutorial discretion and not pursue marijuana cases in those states where it is legal relying upon:

“[an] expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests.”

This has now come to be known as the “Cole memo.”  Click here to read the Cole memo in its entirety.

Facts of the Federal Court Case.

Marin Alliance for Medical Marijuana (“Marin Alliance”) based in Fairfax, California, closed its doors in late 2011, folding under pressure from the federal government, even though it was operating legally according to California law.  It was known as the state’s oldest marijuana dispensary.  It first opened its doors in November 1996, when California legalized medical marijuana.

Marin Alliance was initially targeted by the DOJ due to its close proximity to Bolinas Park.  According to federal law, medical marijuana dispensaries cannot be within 1,000 feet of a park or school, to deter the sale of cannabis to minors.  Owner and director, Lynette Shaw, who is herself a recipient of medical marijuana, maintains she was always cognizant of and in compliance with state laws.

A Favorable Ruling for Medical Marijuana Advocates.

Although medical marijuana dispensaries and users had consistently lost in federal court despite the support of local law, the Amendment codified as section 538 of the federal funding bill last year was the persuading factor for a victory for Marin Alliance.  U.S. District Judge Charles Breyer challenged the DOJ’s interpretation of Section 538 of the 2015 Appropriations Act, asserting that the DOJ’s stance “so tortured the plain meaning of the statute.” Judge Breyer further stated “it defies language and logic for the Government to argue that it does not ‘prevent’ California from ‘implementing’ its medical marijuana laws by shutting down these same heavily-regulated medical marijuana dispensaries.”

To read the full order of the court in this case, click here.

The Need for Congruence Between State and Federal Law.

Despite its growing acceptance as a medicinal treatment in 23 states across the nation (and four states legalizing its use for recreational purposes as well), marijuana has yet to be removed from the federal list of restricted drugs.  The looming threat of prosecution by the DEA for using or dispensing medical marijuana, even within compliance of state law, is enough to deter many from seeking its benefits for patients.

Click here to read one of our previous blog posts regarding federal prosecution for medical marijuana treatment.


Do you agree with the U.S. District Judge’s ruling?  Why or why not?

Contact Experienced Health Law Attorneys for Medical Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

To contact The Health Law Firm please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.


Adler, Jonathan H.  “Court Rules Federal Government May Not Spend Money to Enforce Drug Laws Against Marijuana Dispensaries Legal Under State Law.”  The Washington Post.  20 Oct. 2015.  Web.  9 Nov. 2015.

Ingraham, Christopher.  “Federal Court Tells the DEA to Stop Harassing Medical Marijuana Providers.”  The Washington Post.  20 Oct. 2015.  Web.  9 Nov. 2015.

Phelps, Timothy M.  “Ruling Reins in Justice Department on Medical Pot.”  Orlando Sentinel: A22.  8 Nov. 2015.  Print.  9 Nov. 2015.

Schwartz, Carly.  “Marin Alliance for Medical Marijuana, California’s Oldest Pot Club, Closes.”  San Francisco.  Huff Post: 22 Dec. 2011.  Web. 9 Nov. 2015.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone (407) 331-6620.

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